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The Public Domain

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Thomas Jefferson to Isaac McPherson, August 13, 1813, p. 6.
37278_u00.qxd 8/28/08 11:04 AM Page ii
James Boyle
The
Public
Domain
Enclosing the Commons of the Mind
Yale University Press
New Haven & London
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A Caravan book. For more information, visit www.caravanbooks.org.
Copyright 2008 by James Boyle. All rights reserved.
The author has made an online version of this work available under a Creative
Commons Attribution-Noncommercial-Share Alike 3.0 License. It can be accessed
through the authors website at http://james-boyle.com.
Printed in the United States of America.
ISBN: 978-0-300-13740-8
Library of Congress Control Number: 2008932282
A catalogue record for this book is available from the British Library.
This paper meets the requirements of ANSI/NISO Z39.481992 (Permanence of
Paper). It contains 30 percent postconsumer waste (PCW) and is certied by the
Forest Stewardship Council (FSC)
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Contents
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Acknowledgments, vii
Preface: Comprised of at Least Jelly?, xi
1 Why Intellectual Property?, 1
2 Thomas Jefferson Writes a Letter, 17
3 The Second Enclosure Movement, 42
4 The Internet Threat, 54
5 The Farmers Tale: An Allegory, 83
6 I Got a Mashup, 122
7 The Enclosure of Science and Technology:
Two Case Studies, 160
8 A Creative Commons, 179
9 An Evidence-Free Zone, 205
10 An Environmentalism for Information, 230
Notes and Further Readings, 249
Index, 297
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Acknowledgments
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The ideas for this book come from the theoretical and practical work I
have been doing for the last ten years. None of that work has been done
alone. As a result, the list of people to whom I am indebted makes
Oscar night acknowledgments look haiku-terse by comparison. Here
I can mention only a few. I beg pardon for the inevitable omissions.
First and foremost, my family has tolerated my eccentricities and
xations and moderated them with gentle and deserved mockery.
Want that insignia torn off your car, Dad? Then it would be in the
public domain, right?
My colleagues at Duke are one of the main inuences on my work.
I am lucky enough to work in the only Center for the Study of the
Public Domain in the academic world. I owe the biggest debt of grat-
itude to my colleague Jennifer Jenkins, who directs the Center and
who has inuenced every chapter in this book. David Lange brought
me to Duke. His work on the public domain has always been an inspi-
ration to mine. Arti Rais remarkable theoretical and empirical studies
have helped me to understand everything from software patents to
synthetic biology. Jerry Reichman has supplied energy, insight, and a
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spirited and cosmopolitan focus on the multiple ways in which property can be
protected. Jed Purdy and Neil Siegel commented on drafts and provided crucial
insights on the construction of my argument. Catherine Fisk, Jim Salzman,
Stuart Benjamin, Jonathan Wiener, Mitu Gulati, Jeff Powell, Chris Schroeder,
and many, many others helped outsometimes without knowing it, but often
at the cost of the scarcest of all resources: time. Amidst a brilliant group of re-
search assistants, Jordi Weinstock and David Silverstein stood out. Jordi showed
a dogged ability to track down obscure 1950s songs that was almost scary. Addi-
tional thanks go to Jennifer Ma, Tolu Adewale, Paulina Orchard, and Emily
Sauter. Balfour Smith, the coordinator of our Center, shepherded the manu-
script through its many drafts with skill and erudition.
Duke is the most interdisciplinary university I have ever encountered and
so the obligations ow beyond the law school. Professor Anthony Kelley, a
brilliant composer, not only educated me in composition and the history of
musical borrowing but co-taught a class on musical borrowing that dramati-
cally inuenced Chapter 6. Colleagues in the business schoolparticularly
Jim Anton, a great economic modeler and greater volleyball partner, and Wes
Cohen, a leading empiricistall left their marks. Dr. Robert Cook-Deegan,
leader of Dukes Center for Public Genomics, and my wife Lauren Dame, as-
sociate director of the Genome Ethics, Law and Policy Center, provided cru-
cial support to my work with the sciences in general and synthetic biology in
particular. I was also inspired and informed by colleagues and students in
computer science, English, history, and political science.
But the work I am describing here isas the last chapter suggests
something that goes far beyond the boundaries of one institution. A large
group of intellectual property scholars have inuenced my ideas. Most impor-
tantly, Larry Lessig and Yochai Benkler have each given far more than they
received from me in the sharing economy of scholarship. If the ideas I de-
scribe here have a future, it is because of the astounding leadership Larry has
provided and the insights into the wealth of networks that Yochai brings.
Jessica Litman, Pam Samuelson, Michael Carroll, Julie Cohen, Peggy Radin,
Carol Rose, Rebecca Eisenberg, Mark Lemley, Terry Fisher, Justin Hughes,
Neil Netanel, Wendy Gordon, David Nimmer, Tyler Ochoa, Tim Wu, and
many others have all taught me things I needed to know. Jessica in particular
caught and corrected (some of ) my many errors, while Pam encouraged me to
think about the denition of the public domain in ways that have been vital
to this book. Michael suggested valuable editsthough I did not always lis-
ten. Historical work by Carla Hesse, Martha Woodmansee, and Mark Rose
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has been central to my analysis, which also could not have existed but for
work on the governance of the commons by Elinor Ostrom, Charlotte Hess,
and Carol Rose. Kembrew McLeod and Siva Vaidhyanathan inspired my
work on music and sampling. Peter Jaszi was named in my last book as the
person who most inuenced it. That inuence remains.
Beyond the academy, my main debt is to the board members and staff of
Creative Commons, Science Commons, and ccLearn. Creative Commons, on
whose board I am proud to have served, is the brainchild of Larry Lessig and
Hal Abelson; Science Commons and ccLearn are divisions of Creative Com-
mons that I helped to set up which concentrate on the sciences and on educa-
tion, respectively. The practical experience of building a creative commons
with private toolsof allowing creative collaboration with people you have
never methas shaped this book far beyond the chapter devoted to it. Hal
Abelson, Michael Carroll, and Eric Saltzman were on the midwife team for
the birth of those organizations and became close friends in the process. Since
the entire Creative Commons staff has made it routine to do seven impossi-
ble things before breakfast, it is hard to single out any one individualbut
without Glenn Brown at Creative Commons and John Wilbanks at Science
Commons, neither organization would exist today. Jimmy Wales, founder of
Wikipedia and another Creative Commons board member, also provided key
insights. Finally, but for the leadership of Laurie Racine neither Creative
Commons nor our Center at Duke would be where they are today, and thus
many of the experiments I describe in this book would not have happened.
The intellectual property bar is a fascinating, brilliant, and engagingly ec-
centric group of lawyers. I owe debts to many of its members. Whitney Brous-
sard told me the dirty secrets of the music industry. Daphne Kellera former
student and later a colleaguehelped in more ways than I can count.
A number of scientists and computer scientists made me see things I other-
wise would not haveDrew Endy and Randy Rettberg in synthetic biol-
ogy, Nobel laureates Sir John Sulston and Harold Varmus in genomics and
biology more generally, Paul Ginsparg in astrophysics, and Harlan Onsrud in
geospatial data. Paul Uhlirs work at the National Academy of Sciences intro-
duced me to many of these issues. The work of Richard Stallman, the creator
of the free software movement, remains an inspiration even though he pro-
foundly disagrees with my nomenclature hereand with much else besides.
Activists, civil rights lawyers, bloggers, and librarians have actually done
much of the hard work of building the movement I describe at the end of this
book. Jamie Love has touched, sparked, or masterminded almost every benign
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development I write about here, and novelist Cory Doctorow has either
blogged it or inuenced it. I have worked particularly closely with Manon
Ress, Fred von Lohmann, Cindy Cohn, Jason Schultz, and Gigi Sohn. John
Howkins and Gilberto Gil have provided considerable leadership internation-
ally. But there are many, many others. The entire community of librarians de-
serves our thanks for standing up for free public access to knowledge for over
two hundred years. Librarians are my heroes. They should be yours, too.
Some of the work contained here has been published in other forms else-
where. Portions of Chapters 2 and 3 appeared as The Second Enclosure
Movement and the Construction of the Public Domain;
1
Chapter 7 shares
little textually but much in terms of inspiration with an article I co-wrote for
PLoS Biology with Arti Rai, Synthetic Biology: Caught between Property
Rights, the Public Domain, and the Commons.
2
For several years now I have
been a columnist for the Financial Timess New Economy Policy Forum.
Portions of Chapter 5 and Chapter 9 had their origins in columns written for
that forum. Chapter 10 has its roots both in my article A Politics of Intellec-
tual Property: Environmentalism for the Net?
3
and in the symposium, Cul-
tural Environmentalism @ 10,
4
that Larry Lessig kindly organized for the tenth
anniversary of that article.
Finally, I need to thank the institutions who have supported this study. The
Rockefeller Center in Bellagio provided an inspiring beginning. The Ford,
Rockefeller, MacArthur, and Hewlett Foundations have generously supported
my work, as have Duke Law Schools research grants and Bost Fellowships.
My work on synthetic biology and the human genome was supported in part
by a CEER grant from the National Human Genome Research Institute and
the Department of Energy (P50 HG003391-02). In addition, my thanks go
out to the anonymous donor whose generous donation allowed us to found
the Center for the Study of the Public Domain, and to Bob Young and Laurie
Racine, whose work made the Center possible. Yale University Press were sup-
portive and critical in all the right places. I would like to thank them for
agreeing to release this work under a Creative Commons license. What could
be more appropriate to the books theme?
I could go on and on. But I will not. This urry of names and areas of
knowledge signies more than just the deep thanks of a dilettante. It signies
the emergence of an area of concern, the coming together of very different
groups around a shared probleman imbalance in the rules that dene prop-
erty in the information age. It is that problem, its history, philosophy, and
politics that I try to sketch out in the pages ahead.
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Preface: Comprised of
at Least Jelly?
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Each person has a different breaking point. For one of my students it
was United States Patent number 6,004,596 for a Sealed Crustless
Sandwich. In the curiously mangled form of English that patent law
produces, it was described this way:
A sealed crustless sandwich for providing a convenient sandwich without
an outer crust which can be stored for long periods of time without a
central lling from leaking outwardly. The sandwich includes a lower
bread portion, an upper bread portion, an upper lling and a lower lling
between the lower and upper bread portions, a center lling sealed be-
tween the upper and lower llings, and a crimped edge along an outer
perimeter of the bread portions for sealing the llings there between. The
upper and lower llings are preferably comprised of peanut butter and
the center lling is comprised of at least jelly. The center lling is pre-
vented from radiating outwardly into and through the bread portions
from the surrounding peanut butter.
1
But why does this upset you? I asked; youve seen much
worse than this. And he had. There are patents on human genes,
on auctions, on algorithms.
2
The U.S. Olympic Committee has an
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expansive right akin to a trademark over the word Olympic and will not
permit gay activists to hold a Gay Olympic Games. The Supreme Court
sees no First Amendment problem with this.
3
Margaret Mitchells estate fa-
mously tried to use copyright to prevent Gone With the Wind from being told
from a slaves point of view.
4
The copyright over the words you are now read-
ing will not expire until seventy years after my death; the men die young in
my family, but still you will allow me to hope that this might put it close to
the year 2100. Congress periodically considers legislative proposals that
would allow the ownership of facts.
5
The Digital Millennium Copyright Act
gives content providers a whole array of legally protected digital fences to en-
close their work.
6
In some cases it effectively removes the privilege of fair use.
Each day brings some new Internet horror story about the excesses of intel-
lectual property. Some of them are even true. The list goes on and on. (By
the end of this book, I hope to have convinced you that this matters.) With
all of this going on, this enclosure movement of the mind, this locking up of
symbols and themes and facts and genes and ideas (and eventually people),
why get excited about the patenting of a peanut butter and jelly sandwich? I
just thought that there were limits, he said; some things should be sacred.
This book is an attempt to tell the story of the battles over intellectual
property, the range wars of the information age. I want to convince you that
intellectual property is important, that it is something that any informed citi-
zen needs to know a little about, in the same way that any informed citizen
needs to know at least something about the environment, or civil rights, or
the way the economy works. I will try my best to be fair, to explain the issues
and give both sides of the argument. Still, you should know that this is more
than mere description. In the pages that follow, I try to show that current in-
tellectual property policy is overwhelmingly and tragically bad in ways that
everyone, and not just lawyers or economists, should care about. We are mak-
ing bad decisions that will have a negative effect on our culture, our kids
schools, and our communications networks; on free speech, medicine, and
scientic research. We are wasting some of the promise of the Internet, run-
ning the risk of ruining an amazing system of scientic innovation, carving
out an intellectual property exemption to the First Amendment. I do not
write this as an enemy of intellectual property, a dot-communist ready to end
all property rights; in fact, I am a fan. It is precisely because I am a fan that I
am so alarmed about the direction we are taking.
Still, the message of this book is neither doom nor gloom. None of these
decisions is irrevocable. The worst ones can still be avoided altogether, and
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there are powerful counterweights in both law and culture to the negative
trends I describe here. There are lots of reasons for optimism. I will get to
most of these later, but one bears mentioning now. Contrary to what everyone
has told you, the subject of intellectual property is both accessible and inter-
esting; what people can understand, they can changeor pressure their legis-
lators to change.
I stress this point because I want to challenge a kind of willed ignorance.
Every news story refers to intellectual property as arcane, technical, or
abstruse in the same way as they referred to former attorney general Alberto
Gonzales as controversial. It is a verbal tic and it serves to reinforce the idea
that this is something about which popular debate is impossible. But it is also
wrong. The central issues of intellectual property are not technical, abstruse,
or arcane. To be sure, the rules of intellectual property law can be as complex
as a tax code (though they should not be). But at the heart of intellectual
property law are a set of ideas that a ten-year-old can understand perfectly
well. (While writing this book, I checked this on a ten-year-old I then hap-
pened to have around the house.) You do not need to be a scientist or an econ-
omist or a lawyer to understand it. The stuff is also a lot of fun to think about.
I live in constant wonder that they pay me to do so.
Should you be able to tell the story of Gone With the Wind from a slaves
point of view even if the author does not want you to? Should the Dallas
Cowboys be able to stop the release of Debbie Does Dallas, a cheesy porno
ick, in which the title character brings great dishonor to a uniform similar to
that worn by the Dallas Cowboys Cheerleaders? (After all, the audience might
end up associating the Dallas Cowboys Cheerleaders with . . . well, commod-
ied sexuality.)
7
Should the U.S. Commerce Department be able to patent the genes of a
Guyami Indian woman who shows an unusual resistance to leukemia?
8
What
would it mean to patent someones genes, anyway? Forbidding scientic re-
search on the gene without the patent holders consent? Forbidding human
reproduction? Can religions secure copyrights over their scriptures? Even the
ones they claim to have been dictated by gods or aliens? Even if American
copyright law requires an author, presumably a human one?
9
Can they use
those copyrights to discipline heretics or critics who insist on quoting the
scripture in full?
Should anyone own the protocolsthe agreed-upon common technical
standardsthat make the Internet possible? Does reading a Web page count as
copying it?
10
Should that question depend on technical facts (for example,
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how long the page stays in your browsers cache) or should it depend on
some choice that we want to make about the extent of the copyright holders
rights?
These questions may be hard, because the underlying moral and political
and economic issues need to be thought through. They may be weird; alien
scriptural dictation might qualify there. They surely arent uninteresting, al-
though I admit to a certain prejudice on that point. And some of them, like
the design of our telecommunications networks, or the patenting of human
genes, or the relationship between copyright and free speech, are not merely
interesting, they are important. It seems like a bad idea to leave them to a few
lawyers and lobbyists simply because you are told they are technical.
So the rst goal of the book is to introduce you to intellectual property, to ex-
plain why it matters, why it is the legal form of the information age. The second
goal is to persuade you that our intellectual property policy is going the wrong
way; two roads are diverging and we are on the one that doesnt lead to Rome.
The third goal is harder to explain. We have a simple word for, and an
intuitive understanding of, the complex reality of property. Admittedly,
lawyers think about property differently from the way lay-people do; this is
only one of the strange mental changes that law school brings. But everyone
in our society has a richly textured understanding of mine and thine, of
rights of exclusion, of division of rights over the same property (for example,
between tenant and landlord), of transfer of rights in part or in whole (for ex-
ample, rental or sale). But what about the opposite of propertypropertys
antonym, propertys outside? What is it? Is it just stuff that is not worth
owningabandoned junk? Stuff that is not yet ownedsuch as a seashell on
a public beach, about to be taken home? Or stuff that cannot be owned
a human being, for example? Or stuff that is collectively ownedwould that
be the radio spectrum or a public park? Or stuff that is owned by no one, such
as the deep seabed or the moon? Propertys outside, whether it is the public
domain or the commons, turns out to be harder to grasp than its inside.
To the extent that we think about propertys outside, it tends to have a nega-
tive connotation; we want to get stuff out of the lost-and-found ofce and
back into circulation as property. We talk of the tragedy of the commons,
11
meaning that unowned or collectively owned resources will be managed
poorly; the common pasture will be overgrazed by the villagers sheep because
no one has an incentive to hold back.
When the subject is intellectual property, this gap in our knowledge turns
out to be important because our intellectual property system depends on a
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balance between what is property and what is not. For a set of reasons that I
will explain later, the opposite of property is a concept that is much more
important when we come to the world of ideas, information, expression, and
invention. We want a lot of material to be in the public domain, material that
can be spread without property rights. The general rule of law is, that the no-
blest of human productionsknowledge, truths ascertained, conceptions,
and ideasbecome, after voluntary communication to others, free as the air
to common use.
12
Our art, our culture, our science depend on this public
domain every bit as much as they depend on intellectual property. The third
goal of this book is to explore propertys outside, propertys various antonyms,
and to show how we are undervaluing the public domain and the information
commons at the very moment in history when we need them most. Academic
articles and clever legal briefs cannot solve this problem alone.
Instead, I argue that precisely because we are in the information age, we need
a movementakin to the environmental movementto preserve the public
domain. The explosion of industrial technologies that threatened the environ-
ment also taught us to recognize its value. The explosion of information tech-
nologies has precipitated an intellectual land grab; it must also teach us about
both the existence and the value of the public domain. This enlightenment
does not happen by itself. The environmentalists helped us to see the world
differently, to see that there was such a thing as the environment rather than
just my pond, your forest, his canal. We need to do the same thing in the in-
formation environment.
We have to invent the public domain before we can save it.
A word about style. I am trying to write about complicated issues, some of
which have been neglected by academic scholarship, while others have been
catalogued in detail. I want to advance the eld, to piece together the story of
the second enclosure movement, to tell you something new about the balance
between property and its opposite. But I want to do so in a way that is read-
able. For those in my profession, being readable is a dangerous goal. You have
never heard true condescension until you have heard academics pronounce
the word popularizer. They say it as Isadora Duncan might have said dowdy.
To be honest, I share their concern. All too often, clarity is achieved by leav-
ing out the key qualication necessary to the argument, the subtlety of mean-
ing, the inconvenient empirical evidence.
My solution is not a terribly satisfactory one. A lot of material has been
exiled to endnotes. The endnotes for each chapter also include a short guide
to further reading. I have used citations sparingly, but more widely than an
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author of a popular book normally does, so that the scholarly audience can
trace out my reasoning. But the core of the argument is in the text.
The second balance I have struggled to hit is that between breadth and
depth. The central thesis of the book is that the line between intellectual
property and the public domain is important in every area of culture, science,
and technology. As a result, it ranges widely in subject matter. Yet readers come
with different backgrounds, interests, and bodies of knowledge. As a result,
the structure of the book is designed to facilitate self-selection based on inter-
est. The rst three chapters and the conclusion provide the theoretical basis.
Each chapter builds on those themes, but is also designed to be largely free-
standing. The readers who thrill to the idea that there might be constitutional
challenges to the regulation of digital speech by copyright law may wallow in
those arguments to their hearts content. Others may quickly grasp the gist
and head on for the story of how Ray Charless voice ended up in a mashup
attacking President Bush, or the discussion of genetically engineered bacteria
that take photographs and are themselves the subject of intellectual property
rights. To those readers who nevertheless conclude that I have failed to bal-
ance correctly between precision and clarity, or breadth and depth, I offer my
apologies. I fear you may be right. It was not for want of trying.
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1
Why Intellectual Property?
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Imagine yourself starting a society from scratch. Perhaps you fought
a revolution, or perhaps you led a party of adventurers into some
empty land, conveniently free of indigenous peoples. Now your task
is to make the society work. You have a preference for democracy and
liberty and you want a vibrant culture: a culture with a little chunk
of everything, one that offers hundreds of ways to live and thousands
of ideals of beauty. You dont want everything to be high culture; you
want beer and skittles and trashy delights as well as brilliant news re-
porting, avant-garde theater, and shocking sculpture. You can see a role
for highbrow, state-supported media or publicly nanced artworks,
but your initial working assumption is that the nal arbiter of cul-
ture should be the people who watch, read, and listen to it, and who
remake it every day. And even if you are dubious about the way pop-
ular choice gets formed, you prefer it to some government funding
body or coterie of art mavens.
At the same time as you are developing your culture, you want a
ourishing economyand not just in literature or lm. You want
innovation and invention. You want drugs that cure terrible diseases,
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and designs for more fuel-efcient stoves, and useful little doodads, like
mousetraps, or Post-it notes, or solar-powered backscratchers. To be exact,
you want lots of innovation but you do not know exactly what innovation or
even what types of innovation you want.
Given scarce time and resources, should we try to improve typewriters or
render them obsolete with word processors, or develop functional voice recog-
nition software, or just concentrate on making solar-powered backscratchers?
Who knew that they needed Post-it notes or surgical stents or specialized rice
planters until those things were actually developed? How do you make prior-
ities when the priorities include things you cannot rationally value because
you do not have them yet? How do you decide what to fund and when to
fund it, what desires to trade off against each other?
The society you have founded normally relies on market signals to allocate
resources. If a lot of people want petunias for their gardens, and are willing to
pay handsomely for them, then some farmer who was formerly growing soy-
beans or gourds will devote a eld to petunias instead. He will compete with
the other petunia sellers to sell them to you. Voila! We do not need a state plan-
ner to consult the vegetable ve-year plan and decree Petunias for the People!
Instead, the decision about how to deploy societys productive resources is be-
ing made automatically, cybernetically even, by rational individuals respond-
ing to price signals. And in a competitive market, you will get your petunias at
very close to the cost of growing them and bringing them to market. Consumer
desires are satised and productive resources are allocated efciently. Its a tour
de force.
Of course, there are problems. The market measures the value of a good by
whether people have the ability and willingness to pay for it, so the whims
of the rich may be more valuable than the needs of the destitute. We may
spend more on pet psychiatry for the traumatized poodles on East 71st Street
than on developing a cure for sleeping sickness, because the emotional well-
being of the pets of the wealthy is worth more than the lives of the tropical
worlds poor. But for a lot of products, in a lot of areas, the market works
and that is a fact not to be taken for granted.
Why not use this mechanism to meet your cultural and innovation needs?
If people need Madame Bovary or The New York Times or a new kind of an-
tibiotic, surely the market will provide it? Apparently not. You have brought
economists with you into your brave new worldperhaps out of nostalgia, or
because a lot of packing got done at the last minute. The economists shake
their heads.
1
The petunia farmer is selling something that is a rivalrous
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good. If I have the petunia, you cant have it. Whats more, petunias are ex-
cludable. The farmer only gives you petunias when you pay for them. It is
these factors that make the petunia market work. What about Madame
Bovary, or the antibiotic, or The New York Times? Well, it depends. If books
have to be copied out by hand, then Madame Bovary is just like the petunia.
But if thousands of copies of Madame Bovary can be printed on a printing
press, or photocopied, or downloaded from www.aubertsparrot.com, then
the book becomes something that is nonrival; once Madame Bovary is written,
it can satisfy many readers with little additional effort or cost. Indeed, de-
pending on the technologies of reproduction, it may be very hard to exclude
people from Madame Bovary.
Imagine a Napster for French literature; everyone could have Madame
Bovary and only the rst purchaser would have to pay for it. Because of these
nonrival and nonexcludable characteristics, Flauberts publisher would
have a more difcult time coming up with a business plan than the petunia
farmer. The same is true for the drug company that invests millions in screen-
ing and testing various drug candidates and ends up with a new antibiotic
that is both safe and effective, but which can be copied for pennies. Who will
invest the money, knowing that any product can be undercut by copies that
dont have to pay the research costs? How are authors and publishers and drug
manufacturers to make money? And if they cant make money, how are we to
induce people to be authors or to be the investors who put money into the
publishing or pharmaceutical business?
It is important to pause at this point and inquire how closely reality hews to
the economic story of nonexcludable and nonrival public goods. It turns
out that the reality is much more complex. First, there may be motivations for
creation that do not depend on the market mechanism. People sometimes
create because they seek fame, or out of altruism, or because an inherent cre-
ative force will not let them do otherwise. Where those motivations operate,
we may not need a nancial incentive to create. Thus the problem of cheap
copying in fact becomes a virtue. Second, the same technologies that make
copying cheaper may also lower the costs of advertising and distribution, cut-
ting down on the need to nance expensive distribution chains. Third, even
in situations that do require incentives for creativity and for distribution, it
may be that being rst to market with an innovation provides the innovator
with enough of a head start on the competition to support the innovation.
2
Fourth, while some aspects of the innovation may truly be nonrival, other
aspects may not. Software is nonrival and hard to exclude people from, but it
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is easy to exclude your customers from the help line or technical support. The
CD may be copied cheaply; the concert is easy to police. The innovator may
even be advantaged by being able to trade on the likely effects of her innova-
tion. If I know I have developed the digital camera, I may sell the conven-
tional lm companys shares short. Guarantees of authenticity, quality, and
ease of use may attract purchasers even if unauthorized copying is theoreti-
cally cheaper.
In other words, the economic model of pure public goods will track our
reality well in some areas and poorly in othersand the argument for state
intervention to x the problems of public goods will therefore wax and wane
correspondingly. In the case of drug patents, for example, it is very strong. For
lots of low-level business innovation, however, we believe that adequate in-
centives are provided by being rst to market, and so we see no need to give
monopoly power to the rst business to come up with a new business plan
at least we did not until some disastrous patent law decisions discussed later in
this book. Nor does a lowering of copying costs hurt every industry equally.
Digital copies of music were a threat to the traditional music business, but
digital copies of books? I am skeptical. This book will be freely and legally
available online to all who wish to copy it. Both the publisher and I believe
that this will increase rather than decrease sales.
Ignore these inconvenient complicating factors for a moment. Assume that
wherever things are cheap to copy and hard to exclude others from, we have a
potential collapse of the market. That book, that drug, that lm will simply
not be produced in the rst placeunless the state steps in somehow to
change the equation. This is the standard argument for intellectual property
rights. And a very good argument it is. In order to solve the potentially market-
breaking problem of goods that are expensive to make and cheap to copy, we
will use what my colleague Jerry Reichman calls the market-making device
of intellectual property. The state will create a right to exclude others from the
invention or the expression and confer it on the inventor or the author. The
most familiar rights of this kind are copyrights and patents. (Trademarks pres-
ent some special issues, which I will address a little later.) Having been given
the ability to forbid people to copy your invention or your novel, you can
make them pay for the privilege of getting access. You have been put back in
the position of the petunia farmer.
Pause for a moment and think of what a brilliant social innovation this is
at least potentially. Focus not on the incentives alone, but on the decentraliza-
tion of information processing and decision making that a market offers.
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Instead of having ministries of art that dene the appropriate culture to be
produced this year, or turning the entire path of national innovation policy
over to the government, intellectual property decentralizes the choices about
what creative and innovative paths to pursue while retaining the possibility
that people will actually get paid for their innovation and creative expression.
The promise of copyright is this: if you are a radical environmentalist who
wants to alert the world to the danger posed by climate change, or a passion-
ate advocate of homeschooling, or a cartoonist with a uniquely twisted view
of life, or a musician who can make a slack key guitar do very strange things,
or a person who likes to take amazingly saccharine pictures of puppies and put
them on greeting cardsmaybe you can quit your day job and actually make
a living from your expressive powers. If the market works, if the middlemen
and distributors are smart enough, competitive enough, and willing to take a
chance on expression that competes with their in-house talent, if you can make
it somehow into the public consciousness, then you can be paid for allowing
the world to copy, distribute, and perform your stuff. You risk your time and
your effort and your passion and, if the market likes it, you will be rewarded.
(At the very least, the giant producers of culture will be able to assemble vast
teams of animators and musicians and software gurus and meld their labors
into a videotape that will successfully anesthetize your children for two hours;
no small accomplishment, let me tell you, and one for which people will
certainly pay.)
More importantly, if the system works, the choices about the content of
our culturethe mix of earnest essays and saccharine greeting cards and
scantily clad singers and poetic renditions of Norse mythswill be decentral-
ized to the people who actually read, or listen to, or watch the stuff. This is
our cultural policy and it is driven, in part, by copyright.
The promise of patent is this: we have a multitude of human needs and a
multitude of individuals and rms who might be able to satisfy those needs
through innovation. Patent law offers us a decentralized system that, in prin-
ciple, will allow individuals and rms to pick the problem that they wish to
solve. Inventors and entrepreneurs can risk their time and their capital and, if
they produce a solution that nds favor in the marketplace, will be able to
reap the return provided by the legal right to excludeby the legal monopoly
over the resulting invention. The market hints at some unmet needfor
drugs that might reduce obesity or cure multiple sclerosis, or for Post-it notes
or windshield wipers that come on intermittently in light rainand the in-
novator and her investors make a bet that they can meet that need. (Not all of
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these technologies will be patentableonly those that are novel and nonob-
vious, something that goes beyond what any skilled person in the relevant
eld would have done.)
In return for the legal monopoly, patent holders must describe the technol-
ogy well enough to allow anyone to replicate it once the patent term ends. Thus
patent law allows us to avert two dangers: the danger that the innovation will
languish because the inventor has no way to recover her investment of time
and capital, and the danger that the inventor will turn to secrecy instead, hiding
the details of her innovation behind black box technologies and restrictive
contracts, so that society never gets the knowledge embedded in it. (This is a
real danger. The medieval guilds often relied on secrecy to maintain the com-
mercial advantage conveyed by their special skills, thus slowing progress down
and sometimes simply stopping it. We still dont know how they made Stradi-
varius violins sound so good. Patents, by contrast, keep the knowledge public,
at least in theory;
3
you must describe it to own it.) And again, decisions about
the direction of innovation have been largely, though not entirely, decentralized
to the people who actually might use the products and services that result.
This is our innovation policy and it is increasingly driven by patent.
What about the legal protection of trademarks, the little words or symbols
or product shapes that identify products for us? Why do we have trademark
law, this homestead law for the English language?
4
Why not simply allow
anyone to use any name or attractive symbol that they want on their products,
even if someone else used it rst? A trademark gives me a limited right to
exclude other people from using my mark, or brand name, or product shape,
just as copyright and patent law give me a limited right to exclude other
people from my original expression or my novel invention. Why create such a
right and back it with the force of law?
According to the economists, the answer is that trademark law does two
things. It saves consumers time. We have good reason to believe that a soap
that says Ivory or a tub of ice cream that says Hagen-Dazs will be made
by the same manufacturer that made the last batch of Ivory soap or Hagen-
Dazs ice cream. If we liked the good before and we see the symbol again, we
know what we are getting. I can work out what kind of soap, ice cream, or
car I like, and then just look for the appropriate sign rather than investigating
the product all over again each time I buy. That would be wasteful and econ-
omists hate waste. At the same time, trademarks fulll a second function: they
are supposed to give manufacturers an incentive to make good productsor at
least to make products of consistent quality or priceto build up a good
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brand name and invest in consistency of its key features, knowing that no
other rm can take their name or symbol. (Why produce a high-quality prod-
uct, or a reliable cheap product, and build a big market share if a free rider
could wait until people liked the product and then just produce an imitation
with the same name but of lower quality?) The promise of trademark is that
quality and commercial information ow regulate themselves, with rational
consumers judging among goods of consistent quality produced by manufac-
turers with an interest in building up long-term reputation.
So there we have the idealized vision of intellectual property. It is not
merely supposed to produce incentives for innovation by rewarding creators,
though that is vital. Intellectual property is also supposed to create a feedback
mechanism that dictates the contours of information and innovation produc-
tion. It is not an overstatement to say that intellectual property rights are
designed to shape our information marketplace. Copyright law is supposed to
give us a self-regulating cultural policy in which the right to exclude others
from ones original expression fuels a vibrant public sphere indirectly driven
by popular demand. At its best, it is supposed to allow a decentralized and
iconoclastic cultural ferment in which independent artists, musicians, and
writers can take their unique visions, histories, poems, or songs to the world
and make a living doing so if their work nds favor. Patent law is supposed to
give us a self-regulating innovation policy in which the right to exclude others
from novel and useful inventions creates a cybernetic and responsive innova-
tion marketplace. The allocation of social resources to particular types of in-
novation is driven by guesses about what the market wants. Trademark law is
supposed to give us a self-regulating commercial information policy in which
the right to exclude others from ones trade name, symbol, or slogan produces
a market for consumer information in which rms have incentives to establish
quality brand names and consumers can rely on the meaning and the stability
of the logos that surround them. Ivory soap will always mean Ivory soap and
Coke will mean Coke, at least until the owners of those marks decide to change
the nature of their products.
Some readers will nd my use of the term intellectual property mistaken
and offensive. They will argue, and I agree, that the use of the term property
can cause people mistakenly to conate these rights with those to physical
property. (I outline that process and its negative consequences in the next
chapter.) They will argue, and again I agree, that there are big differences be-
tween the three elds I have described. Should we not just list the specic
rights about which we are speakingcopyright, patent, or trademark? Both
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of these concerns are real and well-founded, but I respectfully disagree with
the conclusion that we should give up the term intellectual property.
First, as I have tried to show above, while there are considerable differences
between the three elds I discussed, there is also a core similaritythe attempt
to use a legally created privilege to solve a potential public goods problem.
That similarity can enlighten as well as confuse. Yes, copyright looks very dif-
ferent from patent, just as a whale looks very different from a mouse. But we
do not condemn the scientist who notes that they are both mammalsa
socially constructed categoryso long as he has a reason for focusing on that
commonality. Second, the language of intellectual property exists. It has politi-
cal reality in the world. Sometimes the language confuses and misleads. There
are two possible reactions to such a reality. One can reject it and insist on a
different and puried nomenclature, or one can attempt to point out the
misperceptions and confusions using the very language in which they are
embedded. I do not reject the rst tactic. It can be useful. Here, though, I
have embraced the second.
I have provided the idealized story of intellectual property. But is it true?
Did the law really develop that way? Does it work that way now? Does this
story still apply in the world of the Internet and the Human Genome Project?
If you believed the idealized story, would you know what kind of intellectual
property laws to write? The answer to all of these questions is not exactly.
Like most social institutions, intellectual property has an altogether messier
and more interesting history than this sanitized version of its functioning would
suggest. The precursors of copyright law served to force the identication of the
author, so that he could be punished if he proved to be a heretic or a revolu-
tionary. The Statute of Annethe rst true copyright statutewas produced
partly because of publishers ghts with booksellers; the authorial right grew as
an afterthought.
5
The history of patents includes a wealth of attempts to reward
friends of the government and restrict or control dangerous technologies. Trade-
mark law has shuttled uneasily between being a free-oating way to police com-
petition so as to prohibit actions that courts thought were unfair and an
absolute property right over an individual word or symbol.
But does intellectual property work this way now, promoting the ideal of
progress, a transparent marketplace, easy and cheap access to information, de-
centralized and iconoclastic cultural production, self-correcting innovation
policy? Often it does, but distressingly often it does the reverse. The rights
that were supposed to be limited in time and scope to the minimum monopoly
necessary to ensure production become instead a kind of perpetual corporate
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welfarerestraining the next generation of creators instead of encouraging
them. The system that was supposed to harness the genius of both the market
and democracy sometimes subverts both. Worse, it does so inefciently, lock-
ing up vast swaths of culture in order to confer a benet on a tiny minority of
works. But this is too abstract. A single instance from copyright law will serve
as a concrete example of what is at stake here. Later in the book I will give
other examples.
YOULL GET MY LIBRARY OF
CONGRESS WHEN . . .
Go to the Library of Congress catalogue. It is online at http://catalog.loc.gov/.
This is an astounding repository of materialnot just books and periodicals,
but pictures, lms, and music. The vast majority of this material, perhaps as
much as 95 percent in the case of books, is commercially unavailable.
6
The
process happens comparatively quickly. Estimates suggest that a mere twenty-
eight years after publication 85 percent of the works are no longer being com-
mercially produced. (We know that when U.S. copyright required renewal
after twenty-eight years, about 85 percent of all copyright holders did not
bother to renew. This is a reasonable, if rough, guide to commercial viability.)
7
Yet because the copyright term is now so long, in many cases extending well
over a century, most of twentieth-century culture is still under copyright
copyrighted but unavailable. Much of this, in other words, is lost culture. No
one is reprinting the books, screening the lms, or playing the songs. No one is
allowed to. In fact, we may not even know who holds the copyright. Compa-
nies have gone out of business. Records are incomplete or absent. In some
cases, it is even more complicated. A lm, for example, might have one copy-
right over the sound track, another over the movie footage, and another over
the script. You get the idea. These workswhich are commercially unavailable
and also have no identiable copyright holderare called orphan works.
They make up a huge percentage of our great libraries holdings. For example,
scholars estimate that the majority of our lm holdings are orphan works.
8
For
books, the estimates are similar. Not only are these works unavailable commer-
cially, there is simply no way to nd and contact the person who could agree to
give permission to digitize the work or make it available in a new form.
Take a conservative set of numbers. Subtract from our totals the works that
are clearly in the public domain. In the United States, that is generally work
produced before 1923. That material, at least, we can use freely. Subtract, too,
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the works that are still available from the copyright holder. There we can gain
access if we are willing to pay. Yet this still leaves a huge proportion of
twentieth- and twenty-rst-century culture commercially unavailable but under
copyright. In the case of books, the number is over 95 percent, as I said before;
with lms and music, it is harder to tell, but the percentages are still tragically
high. A substantial proportion of that total is made up of orphan works. They
cannot be reprinted or digitized even if we were willing to pay the owner to do
so. And then comes the Internet. Right now, you can search for those books
or lms or songs and have the location of the work instantly displayed, as well
as a few details about it. And if you live in Washington, D.C., or near some
other great library, you can go to a reading room, and if the work can be
found and has not been checked out, and has not deteriorated, you can read
the books (though you probably will not be able to arrange to see the movies
unless you are an accredited lm scholar).
I was searching the Library of Congress catalogue online one night, track-
ing down a seventy-year-old book about politics and markets, when my son
came in to watch me. He was about eight years old at the time but already a
child of the Internet age. He asked what I was doing and I explained that I
was printing out the details of the book so that I could try to nd it in my
own university library. Why dont you read it online? he said, reaching over
my shoulder and double-clicking on the title, frowning when that merely led
to another information page: How do you get to read the actual book? I
smiled at the assumption that all the works of literature were not merely in the
Library of Congress, but actually on the Net: available to anyone with an
Internet connection anywhere in the worldso that you could not merely
search for, but also read or print, some large slice of the Librarys holdings.
Imagine what that would be like. Imagine the little underlined blue hyperlink
from each titleto my son it made perfect sense. The books title was in the
catalogue. When you clicked the link, surely you would get to read it. That is
what happened in his experience when one clicked a link. Why not here? It was
an old book, after all, no longer in print. Imagine being able to read the books,
hear the music, or watch the lmsor at least the ones that the Library of
Congress thought it worthwhile to digitize. Of course, that is ridiculous.
I tried to explain this to my son. I showed him that there were some works
that could be seen online. I took him to the online photograph library, mean-
ing to show him the wealth of amazing historical photographs. Instead, I found
myself brooding over the lengthy listing of legal restrictions on the images and
the explanation that reproduction of protected items may require the written
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permission of the copyright owners and that, in many cases, only indistinct
and tiny thumbnail images are displayed to those searching from outside the
Library of Congress because of potential rights considerations. The same
was true of the scratchy folk songs from the twenties or the early lm holdings.
The material was in the Library, of courseremarkable collections in some
cases, carefully preserved, and sometimes even digitized at public expense. Yet
only a tiny fraction of it is available online. (There is a fascinating set of Edisons
early lms, for example.)
Most of the material available online comes from so long ago that the copy-
right could not possibly still be in force. But since copyright lasts for seventy
years after the death of the author (or ninety-ve years if it was a corporate
work for hire), that could be a very, very long time indeed. Long enough, in
fact, to keep off limits almost the whole history of moving pictures and the en-
tire history of recorded music. Long enough to lock up almost all of twentieth-
century culture.
But is that not what copyright is supposed to do? To grant the right to re-
strict access, so as to allow authors to charge for the privilege of obtaining it?
Yes, indeed. And this is a very good idea. But as I argue in this book, the goal
of the system ought to be to give the monopoly only for as long as necessary
to provide an incentive. After that, we should let the work fall into the public
domain where all of us can use it, transform it, adapt it, build on it, republish
it as we wish. For most works, the owners expect to make all the money they
are going to recoup from the work with ve or ten years of exclusive rights.
The rest of the copyright term is of little use to them except as a kind of lottery
ticket in case the work proves to be a one-in-a-million perennial favorite. The
one-in-a-million lottery winner will benet, of course, if his ticket comes up.
And if the ticket is free, who would not take it? But the ticket is not free to
the public. They pay higher prices for the works still being commercially ex-
ploited and, frequently, the price of complete unavailability for the works that
are not.
Think of a one-in-a-million perennial favoriteHarry Potter, say. Long
after J. K. Rowling is dust, we will all be forbidden from making derivative
works, or publishing cheap editions or large-type versions, or simply reproduc-
ing it for pleasure. I am a great admirer of Ms. Rowlings work, but my guess
is that little extra incentive was provided by the thought that her copyright
will endure seventy rather than merely fty years after her death. Some large
costs are being imposed here, for a small benet. And the costs fall even more
heavily on all the other works, which are available nowhere but in some
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moldering library stacks. To put it another way, if copyright owners had to
purchase each additional ve years of term separately, the same way we buy
warranties on our appliances, the economically rational ones would mainly
settle for a fairly short period.
Of course, there are some works that are still being exploited commercially
long after their publication date. Obviously the owners of these works would
not want them freely available online. This seems reasonable enough, though
even with those works the copyright should expire eventually. But remember,
in the Library of Congresss vast, wonderful pudding of songs and pictures
and lms and books and magazines and newspapers, there is perhaps a hand-
ful of raisins worth of works that anyone is making any money from, and the
vast majority of those come from the last ten years. If one goes back twenty
years, perhaps a raisin. Fifty years? A slight raisiny aroma. We restrict access to
the whole pudding in order to give the owners of the raisin slivers their due.
But this pudding is almost all of twentieth-century culture, and we are re-
stricting access to it when almost of all of it could be available.
If you do not know much about copyright, you might think that I am
exaggerating. After all, if no one has any nancial interest in the works or we
do not even know who owns the copyright, surely a library would be free to
put those works online? Doesnt no harm, no foul apply in the world of
copyright? In a word, no. Copyright is what lawyers call a strict liability
system. This means that it is generally not a legal excuse to say that you did
not believe you were violating copyright, or that you did so by accident, or in
the belief that no one would care, and that your actions beneted the public.
Innocence and mistake do not absolve you, though they might reduce the
penalties imposed. Since it is so difcult to know exactly who owns the copy-
right (or copyrights) on a work, many libraries simply will not reproduce the
material or make it available online until they can be sure the copyright has
expiredwhich may mean waiting for over a century. They cannot afford to
take the risk.
What is wrong with this picture? Copyright has done its job and encouraged
the creation of the work. But now it acts as a fence, keeping us out and re-
stricting access to the work to those who have the time and resources to
trudge through the stacks of the nations archives. In some cases, as with lm,
it may simply make the work completely unavailable.
So far I have been talking as though copyright were the only reason the
material is not freely available online. But of course, this is not true. Digitiz-
ing costs money (though less every year) and there is a lot of rubbish out
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there, stuff no one would ever want to make available digitally (though it
must be noted that one mans rubbish is another mans delight). But that still
leaves vast amounts of material that we would want, and be willing to pay, to
have digitized. Remember also that if the material were legally free, anyone
could get in on the act of digitizing it and putting it up. Googles much-
heralded effort to scan the books in major libraries is just the kind of thing I
mean. But Google is being sued for violating copyrighteven though it allows
any author to opt out of its system, and even though under the Google sys-
tem you cannot click to get the book if it is still under copyright, merely a
snippet a few sentences long from the book.
If you are shaking your head as you read this, saying that no one would
bother digitizing most of the material in the archives, look at the Internet and
ask yourself where the information came from the last time you did a search.
Was it an ofcial and prestigious institution? A university or a museum or a
government? Sometimes those are our sources of information, of course. But
do you not nd the majority of the information you need by wandering off
into a strange click-trail of sites, amateur and professional, commercial and
not, hobbyist and entrepreneur, all self-organized by internal referrals and
search engine algorithms? Even if Google did not undertake the task of digiti-
zation, there would be hundreds, thousands, maybe millions of others who
wouldnot with Googles resources, to be sure. In the process, they would
create something quite remarkable.
The most satisfying proofs are existence proofs. A platypus is an existence
proof that mammals can lay eggs. The Internet is an existence proof of the
remarkable information processing power of a decentralized network of hob-
byists, amateurs, universities, businesses, volunteer groups, professionals, and
retired experts and who knows what else. It is a network that produces useful
information and services. Frequently, it does so at no cost to the user and
without anyone guiding it. Imagine that energy, that decentralized and idio-
syncratically dispersed pattern of interests, turned loose on the cultural arti-
facts of the twentieth century. Then imagine it coupled to the efforts of the
great state archives and private museums who themselves would be free to do
the same thing. Think of the people who would work on Buster Keaton, or
the literary classics of the 1930s, or the lms of the Second World War, or
footage on the daily lives of African-Americans during segregation, or the
music of the Great Depression, or theremin recordings, or the best of vaudev-
ille. Imagine your Google search in such a world. Imagine that Library of
Congress. One science ction writer has taken a stab. His character utters the
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immortal line, Man, youll get my Library of Congress when you pry my cold
dead ngers off it !
9
Familiar with the effect of this kind of train of thought on his father, my
son had long since wandered off in search of a basketball game to watch. But
I have to admit his question was something of an epiphany for me: Where do
you click to get the actual book?
The response I get from a lot of people is that this vision of the Library of
Congress is communism, pure and simple. Such people view Googles attempt
to digitize books as simple theft. Surely it will destroy the incentives neces-
sary to produce the next beach novel, the next academic monograph, the next
teen band CD, the next hundred-million-dollar movie? But this mistakes
my suggestion. Imagine a very conservative system. First, let us make people
demonstrate that they want a copyright, by the arduous step of actually writ-
ing the word copyright or the little on the work. (At the moment, everyone
gets a copyright as soon as the work is written down or otherwise xed,
whether they want one or not.) But how long a copyright? We know that the
majority of works are only valuable for ve or ten years. Let us give copyright
owners more than double that, say twenty-eight years of exclusive rights. If
prior experience is any guide, 85 percent of works will be allowed to enter the
public domain after that period. If that isnt generous enough, let us say that
the small proportion of owners who still nd value in their copyright at the
end of twenty-eight years can extend their copyright for another twenty-eight
years. Works that are not renewed fall immediately into the public domain. If
you check the register after twenty-eight years and the work has not been re-
newed, it is in the public domain. Works that are renewed get the extra time.
Now this is a conservative suggestion, too conservative in my view, though
still better than what we have now. Is it feasible? It would be hard to argue that
it is not. This pretty much was the law in the United States until 1978. (My
system is a little simpler, but the broad strokes are the same.) Since that point,
in two broad stages, we have moved away from this system at the very moment
in history when the Internet made it a particularly stupid idea to do so.
How have we changed the system? We have given copyrights to the creator
of any original work as soon as it is xed, so that you, reader, are the author of
thousands of copyrighted works. Almost everything up on the Internet is
copyrighted, even if its creators do not know that and would prefer it to be in
the public domain. Imagine that you want to make a documentary and use a
lm clip that a student lmmaker has put up on his home page. Perhaps you
want to adapt the nifty graphics that a high school teacher in Hawaii created
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to teach her calculus class, thinking that, with a few changes, you could use
the material for your states K-12 physics program. Perhaps you are a collage
artist who wishes to incorporate images that amateur artists have put online.
None of the works are marked by a copyright symbol. Certainly they are up
on the Internet, but does that mean that they are available for reprinting,
adaptation, or incorporation in a new work?
In each of these cases, you simply do not know whether what you are doing
is legal or not. Of course, you can take the risk, though that becomes less
advisable if you want to share your work with others. Each broadening of the
circle of sharing increases the value to society but also the legal danger to you.
What if you want to put the course materials on the Net, or publish the
anthology, or display the movie? Perhaps you can try to persuade your pub-
lisher or employer or distributor to take the risk. Perhaps you can track down
the authors of every piece you wish to use and puzzle through the way to get
a legal release from them stating that they give you permission to use the work
they did not even know they had copyright over. Or you can give up. What-
ever happens, you waste time and effort in trying to gure out a way of getting
around a system that is designed around neither your needs nor the needs of
many of the people whose work you want to use.
Apart from doing away with the need to indicate that you want your works
to be copyrighted, we have lengthened the copyright term. We did this with-
out any credible evidence that it was necessary to encourage innovation. We
have extended the terms of living and even of dead authors over works that
have already been created. (It is hard to argue that this was a necessary incen-
tive, what with the works already existing and the authors often being dead.)
We have done away with the need to renew the right. Everyone gets the term
of life plus seventy years, or ninety-ve years for corporate works for hire.
All protected by a strict liability system with scary penalties. And, as I said
before, we have made all those choices just when the Internet makes their
costs particularly tragic.
In sum, we have forgone the Library of Congress I described without even
apparently realizing we were doing so. We have locked up most of twentieth-
century culture and done it in a particularly inefcient and senseless way,
creating vast costs in order to convey proportionally tiny benets. (And all
without much complaint from those who normally object to inefcient gov-
ernment subsidy programs.) Worst of all, we have turned the system on its
head. Copyright, intended to be the servant of creativity, a means of promoting
access to information, is becoming an obstacle to both.
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That, then, is one example of the stakes of the debate over intellectual
property policy. Unfortunately, the problem of copyright terms is just one
example, one instance of a larger pattern. As I will try to show, this pattern is
repeated again and again in patents, in trademarks, and elsewhere in copy-
right law. This is not an isolated glitch. It is a complicated but relentless ten-
dency that has led to a hypertrophy of intellectual property rights and an
assault on the public domain. In fact, in many cases, the reality is even worse:
there appears to be a complete ignorance about the value of the public domain.
Propertys opposite, its outside, is getting short shrift.
To paraphrase a song from my youth, how did we get here? Where
should we turn to understand the role of intellectual property in the era of the
Internet and the decoding of the human genome? We could turn to the cutting
edge of technology or to economics or information theory. But none of those
would be as useful a starting place as a letter that was written about two
hundred years ago, using a high-tech quill pen, about a subject far from the
digital world.
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2
Thomas Jefferson Writes a Letter
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On August 13, 1813, Thomas Jefferson took up his pen to write to
Isaac McPherson.
1
It was a quiet week in Jeffersons correspondence.
He wrote a letter to Madison about the appointment of a tax assessor,
attempted to procure a government position for an acquaintance,
produced a fascinating and lengthy series of comments on a new
Rudiments of English Grammar, discussed the orthography of
nouns ending in y, accepted the necessary delay in the publication
of a study on the anatomy of mammoth bones, completed a brief
biography of Governor Lewis, and, in general, conned himself nar-
rowly in subject matter.
2
But on the 13th of August, Jeffersons mind
was on intellectual property, and most specically, patents.
Jeffersons writing is, as usual, apparently effortless. Some nd his
penmanship a little hard to decipher. To me, used to plowing through
the frenzied chicken tracks that law students produce during exams, it
seems perfectly clear. If handwriting truly showed the architecture of
the soul, then Jeffersons would conjure up Monticello or the Univer-
sity of Virginia. There are a few revisions and interlineations, a couple
of words squeezed in with a caret at the bottom of the line, but for the
17
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most part the lines of handwriting simply roll on and onthe fugitive fermen-
tation of an individual brain,
3
to quote a phrase from the letter, caught in vel-
lum and ink, though that brain has been dust for more than a century and a half.
I love libraries. I love the mushroom smell of gently rotting paper, the aky
crackle of manuscripts, and the surprise of matching style of handwriting with
style of thought. Today, though, I am viewing his letter over the Internet on a
computer screen. (You can too. The details are at the back of the book.)
I think Jefferson would have been fascinated by the Internet. After all, this
was the man whose library became the Library of Congress,
4
who exemplies
the notion of the brilliant dabbler in a hundred elds, whose own book col-
lection was clearly a vital and much consulted part of his daily existence, and
whose vision of politics celebrates the power of an informed citizenry. Admit-
tedly, the massive conicts between Jeffersons announced principles and his
actions on the issue of slavery have led some, though not me, to doubt that
there is any sincerity or moral instruction to be found in his words.
5
But even
those who nd him a sham can hardly fail to see the continual and obvious
joy he felt about knowledge and its spread.
In the letter to Isaac McPherson, a letter that has become very famous in the
world of the digerati,
6
this joy becomes manifest. The initial subject of the
correspondence seems far from the online world. McPherson wrote to Jeffer-
son about elevators, conveyers and Hopper-boys. Specically, he wanted to
know Jeffersons opinion of a patent that had been issued to Mr. Oliver Evans.
Jefferson devotes a paragraph to a recent retrospective extension of patent
rights (he disapproves) and then turns to Evanss elevators.
Patents then, as now, were only supposed to be given for inventions that were
novel, nonobvious, and useful. Jefferson had considerable doubt whether
Evanss device, essentially a revolving string of buckets used to move grain,
actually counted as an invention. The question then whether such a string of
buckets was invented rst by Oliver Evans, is a mere question of fact in mathe-
matical history. Now, turning to such books only as I happen to possess, I nd
abundant proof that this simple machinery has been in use from time imme-
morial. Jefferson cites from his library example after example of references to
the Persian wheela string of buckets to move water. The display of scholar-
ship is effortless and without artice. If the device existed to move water, he de-
clares, Mr. Evans can hardly patent it to move grain. If one person invents a
knife convenient for pointing our pens, another cannot have a patent right for
the same knife to point our pencils. A compass was invented for navigating the
sea; another could not have a patent right for using it to survey land.
7
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So far as we can tell, this was the only part of the letter that interested
McPherson. Later correspondence indicates that he had a pamphlet printed
questioning the patent.
8
But while it is impressive to see Jeffersons easy
command of historical evidence or his grasp of the importance of limiting the
subject matter, scope, and duration of patents, these qualities alone would not
have given the letter the fame it now has. It is when Jefferson turns to the idea
of intellectual property itself that the letter becomes more than a historical
curiosity. In a couple of pages, quickly jotted down on a humid August day in
1813, he frames the issue as well as anyone has since.
He starts by dismissing the idea that inventors have a natural and exclusive
right to their inventions, and not merely for their own lives, but inheritable to
their heirs. In lines that will sound strange to those who assume that the framers
of the Constitution were property absolutists, Jefferson argues that stable own-
ership of even tangible property is a gift of social law. Intellectual property,
then, has still less of a claim to some permanent, absolute, and natural status.
[W]hile it is a moot question whether the origin of any kind of property is derived
from nature at all, it would be singular to admit a natural and even an hereditary
right to inventors. It is agreed by those who have seriously considered the subject,
that no individual has, of natural right, a separate property in an acre of land, for
instance. By an universal law, indeed, whatever, whether xed or movable, belongs
to all men equally and in common, is the property for the moment of him who oc-
cupies it, but when he relinquishes the occupation, the property goes with it. Stable
ownership is the gift of social law, and is given late in the progress of society. It
would be curious then, if an idea, the fugitive fermentation of an individual brain,
could, of natural right, be claimed in exclusive and stable property.
9
Jeffersons point here may seem obscure to us. We are not used to starting
every argument from rst principles. But it is in fact quite simple. It is society
that creates property rights that go beyond mere occupancy. It does so for
several reasonsreasons of both practicality and natural justice. (Elsewhere in
his writings, Jefferson expands on this point at greater length.) One of those
reasons has to do with the difculty, perhaps even the impossibility, of two
different people having full and unfettered ownership of the same piece of
property simultaneously. Another linked reason comes from the practicality
of excluding others from our property, so that we can exploit it secure from
the plunder or sloth of others. The economists you encountered in Chapter 1
have, with their usual linguistic felicity, coined the terms rivalrous and ex-
cludable to describe these characteristics.
With rivalrous property, one persons use precludes anothers. If I drink the
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milk, you cannot. Excludable property is, logically enough, property from
which others can easily be excluded or kept out. But ideas seem to have nei-
ther of these characteristics.
If nature has made any one thing less susceptible than all others of exclusive prop-
erty, it is the action of the thinking power called an idea, which an individual may
exclusively possess as he keeps it to himself; but the moment it is divulged, it forces
itself into the possession of every one, and the receiver cannot dispossess himself of
it. Its peculiar character, too, is that no one possess the less, because every other
possess the whole of it. He who receives an idea from me, receives instruction him-
self without lessening mine; as he who lights his taper at mine, receives light with-
out darkening me. That ideas should freely spread from one to another over the
globe, for the moral and mutual instruction of man, and improvement of his
condition, seems to have been peculiarly and benevolently designed by nature,
when she made them, like re, expansible over all space, without lessening their
density in any point, and like the air in which we breathe, move, and have our
physical being, incapable of connement or exclusive appropriation. Inventions
then cannot, in nature, be a subject of property.
10
Those who quote the passage sometimes stop here, which is a shame, because
it leaves the impression that Jefferson was unequivocally against intellectual
property rights. But that would be a considerable overstatement. When he
says that inventions can never be the subject of property, he means a perma-
nent and exclusive property right which, as a matter of natural right, no just
government could abridge. However, inventions could be covered by tempo-
rary state-created monopolies instituted for the common good. In the lines
immediately following the popularly quoted excerpt, Jefferson goes on:
Society may give an exclusive right to the prots arising from [inventions], as an
encouragement to men to pursue ideas which may produce utility, but this may or
may not be done, according to the will and convenience of the society, without claim
or complaint from any body. Accordingly, it is a fact, as far as I am informed, that
England was, until we copied her, the only country on earth which ever, by a general
law, gave a legal right to the exclusive use of an idea. In some other countries it is
sometimes done, in a great case, and by a special and personal act, but, generally
speaking, other nations have thought that these monopolies produce more embar-
rassment than advantage to society; and it may be observed that the nations which re-
fuse monopolies of invention, are as fruitful as England in new and useful devices.
11
Jeffersons message was a skeptical recognition that intellectual property
rights might be necessary, a careful explanation that they should not be treated
as natural rights, and a warning of the monopolistic dangers that they pose.
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He immediately goes on to say something else, something that is, if anything,
more true in the world of patents on Internet business methods and gene se-
quences than it was in the world of conveyers and Hopper-boys.
Considering the exclusive right to invention as given not of natural right, but for
the benet of society, I know well the difculty of drawing a line between the
things which are worth to the public the embarrassment of an exclusive patent, and
those which are not.
12
So Jefferson gives us a classic set of cautions, cautions that we should be re-
quired to repeat, as police ofcers repeat the Miranda Warning to a suspect. In
this case, they should be repeated before we rush off into the world of intel-
lectual property policy rather than before we talk to the police without our
lawyers present.
THE JEFFERSON WARNING
Like the Miranda Warning, the Jefferson Warning has a number of important
parts.
First, the stuff we cover with intellectual property rights has certain vital dif-
ferences from the stuff we cover with tangible property rights. Partly because
of those differences, Jefferson, like most of his successors in the United
States, does not see intellectual property as a claim of natural right based on
expended labor. Instead it is a temporary state-created monopoly given to
encourage further innovation.
Second, there is no entitlement to have an intellectual property right. Such
rights may or may not be given as a matter of social will and convenience
without claim or complaint from any body.
Third, intellectual property rights are not and should not be permanent; in
fact they should be tightly limited in time and should not last a day longer
than necessary to encourage the innovation in the rst place.
Fourth, a linked point, they have considerable monopolistic dangersthey
may well produce more embarrassment than advantage. In fact, since
intellectual property rights potentially restrain the benevolent tendency of
ideas . . . [to] freely spread from one to another over the globe, for the moral
and mutual instruction of man, they may in some cases actually hinder rather
than encourage innovation.
Fifth, deciding whether to have an intellectual property system is only the
rst choice in a long series.
13
Even if one believes that intellectual property is
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a good idea, which I rmly do, one will still have the hard job of saying
which types of innovation or information are worth to the public the em-
barrassment of an exclusive right, and of drawing the limits of that right.
This line-drawing task turns out to be very difcult. Without the cautions
that Jefferson gave us it is impossible to do it well.
Jeffersons message was famously echoed and amplied thirty years later in
Britain by Thomas Babington Macaulay.
14
Macaulays speeches to the House
of Commons in 1841 on the subject of copyright term extension still express
better than anything else the position that intellectual property rights are nec-
essary evils which must be carefully circumscribed by law. In order for the
supply of valuable books to be maintained, authors must be remunerated for
their literary labour. And there are only two ways in which they can be remu-
nerated. One of those ways is patronage; the other is copyright. Patronage is
rejected out of hand. I can conceive no system more fatal to the integrity and
independence of literary men than one under which they should be taught to
look for their daily bread to the favour of ministers and nobles.
15
We have, then, only one resource left. We must betake ourselves to copyright, be
the inconveniences of copyright what they may. Those inconveniences, in truth,
are neither few nor small. Copyright is monopoly, and produces all the effects
which the general voice of mankind attributes to monopoly. . . . I believe, Sir, that
I may safely take it for granted that the effect of monopoly generally is to make
articles scarce, to make them dear, and to make them bad. And I may with equal
safety challenge my honorable friend to nd out any distinction between copy-
right and other privileges of the same kind; any reason why a monopoly of books
should produce an effect directly the reverse of that which was produced by the
East India Companys monopoly of tea, or by Lord Essexs monopoly of sweet
wines. Thus, then, stands the case. It is good that authors should be remunerated;
and the least exceptionable way of remunerating them is by a monopoly. Yet
monopoly is an evil. For the sake of the good we must submit to the evil; but
the evil ought not to last a day longer than is necessary for the purpose of securing
the good.
16
Notice that it is the monopolistic quality of intellectual property that really
disturbs Macaulay. His was a generation of thinkers for whom the negative
effect of monopolies of any kind (and state-granted monopolies in particular)
was axiomatic. He becomes almost contemptuous when one of the supporters
of copyright extension declared that it was merely a theory that monopoly
makes things expensive. Macaulay agrees, tongue in cheek. It is a theory in
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the same sense in which it is a theory, that day and night follow each other,
that lead is heavier than water, that bread nourishes, that arsenic poisons, that
alcohol intoxicates.
17
These words from Jefferson and Macaulay encapsulate an eighteenth- and
nineteenth-century free-trade skepticism about intellectual property, a skepti-
cism that is widely, but not universally, believed to have played an important
role in shaping the history of intellectual property in both the United States
and the United Kingdom. Certainly the U.S. Supreme Court has offered sup-
port for that position,
18
and, with one signicant recent exception,
19
historians
of intellectual property have agreed.
20
Jefferson himself had believed that the
Constitution should have denite limits on both the term and the scope of
intellectual property rights.
21
James Madison stressed the costs of any intellec-
tual property right and the need to limit its term and to allow the government
to end the monopoly by compulsory purchase if necessary.
22
Adam Smith
expressed similar views. Monopolies that carry on long after they were needed
to encourage some socially benecial activity, he said, tax every other citizen
very absurdly in two different ways: rst, by the high price of goods, which,
in the case of a free trade, they could buy much cheaper; and, secondly, by
their total exclusion from a branch of business which it might be both conve-
nient and protable for many of them to carry on.
23
It is important to note, though, that the eighteenth- and nineteenth-century
writers I have quoted were not against intellectual property. All of them
Jefferson, Madison, Smith, and Macaulaycould see good reason why intel-
lectual property rights should be granted. They simply insisted on weighing
the costs and benets of a new right, each expansion of scope, each lengthening
of the copyright term. Here is Macaulay again, waxing eloquently sarcastic
about the costs and benets of extending the copyright term so that it would
last many years after the authors death:
I will take an example. Dr. Johnson died fty-six years ago. If the law were what my
honourable and learned friend wishes to make it, somebody would now have the mo-
nopoly of Dr. Johnsons works. Who that somebody would be it is impossible to say;
but we may venture to guess. I guess, then, that it would have been some bookseller,
who was the assign of another bookseller, who was the grandson of a third bookseller,
who had bought the copyright from Black Frank, the Doctors servant and residuary
legatee, in 1785 or 1786. Now, would the knowledge that this copyright would exist in
1841 have been a source of gratication to Johnson? Would it have stimulated his ex-
ertions? Would it have once drawn him out of his bed before noon? Would it have
once cheered him under a t of the spleen? Would it have induced him to give us one
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more allegory, one more life of a poet, one more imitation of Juvenal? I rmly believe
not. I rmly believe that a hundred years ago, when he was writing our debates for
the Gentlemans Magazine, he would very much rather have had twopence to buy a
plate of shin of beef at a cooks shop underground.
24
Again, I am struck by how seamlessly Macaulay coupled beautiful, evoca-
tive writing and careful, analytic argument. Admittedly, he was remarkable
even in his own time, but it is hard to imagine a contemporary speechwriter,
let alone a politician, coming up with Dr. Johnson cheered . . . under a t of
the spleen or buying a plate of shin of beef at a cooks shop underground.
Almost as hard as it is to imagine any of them engaging in Jeffersons corre-
spondence about mammoth bones, orthography, and the practicalities of the
nautical torpedo. But I digress.
Macaulay is not against using a lengthened copyright term to give an extra
reward to writers, even if this would dramatically raise the price of books.
What he objects to is dramatically raising the price of books written by long-
dead authors in a way that benets the authors hardly at all.
Considered as a reward to him, the difference between a twenty years and a sixty
years term of posthumous copyright would have been nothing or next to nothing.
But is the difference nothing to us? I can buy Rasselas for sixpence; I might have had
to give ve shillings for it. I can buy the Dictionary, the entire genuine Dictionary,
for two guineas, perhaps for less; I might have had to give ve or six guineas for it.
Do I grudge this to a man like Dr. Johnson? Not at all. Show me that the prospect
of this boon roused him to any vigorous effort, or sustained his spirits under de-
pressing circumstances, and I am quite willing to pay the price of such an object,
heavy as that price is. But what I do complain of is that my circumstances are to be
worse, and Johnsons none the better; that I am to give ve pounds for what to him
was not worth a farthing.
25
Though Macaulay won the debate over copyright term extension, it is
worth noting here that his opponents triumphed in the end. As I pointed out
in the last chapter, the copyright term in most of Europe and in the United
States now lasts for the life of the author and an additional seventy years
afterward, ten years more than the proposal which made Macaulay so indig-
nant. In the United States, corporate owners of works-for-hire get ninety-
ve years.
26
The Supreme Court recently heard a constitutional challenge to
the law which expanded the term of copyrights by twenty years to reach this
remarkable length.
27
(Full disclosure: I helped prepare an amicus brief in that
case.)
28
This law, the Sonny Bono Copyright Term Extension Act, also ex-
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tended existing copyrights over works which had already been created.
29
As
I observed earlier, this is particularly remarkable if the idea is to give an incen-
tive to create. Obviously the authors of existing works were given sufcient in-
centive to create; we know that because they did. Why do we need to give the
people who now hold their copyrights another twenty years of monopoly?
This is all cost and no benet. Macaulay would have been furious.
When the Supreme Court heard the case, it was presented with a remark-
able friend-of-the-court brief from seventeen economists, several of them No-
bel laureates.
30
The economists made exactly Macaulays argument, though in
less graceful language. They pointed out that copyright extension imposed
enormous costs on the public and yet conveyed tiny advantages, if any, to the
creator. Such an extension, particularly over works that had already been writ-
ten, hardly t the limits of Congresss power under the Constitution to pro-
mote the Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective Writings and
Discoveries.
31
Macaulay doubted that these enormously long terms would
encourage the living. Surely they would do little to encourage the dead, while
imposing considerable costs of access on the living? Thus they could hardly
be said to promote the progress of knowledge as the Constitution requires.
The Court was unmoved by this and other arguments. It upheld the law.
I will return to its decision at the end of the book.
The intellectual property skeptics had other concerns. Macaulay was partic-
ularly worried about the power that went with a transferable and inheritable
monopoly. It is not only that the effect of monopoly is to make articles
scarce, to make them dear, and to make them bad. Macaulay also pointed
out that those who controlled the monopoly, particularly after the death of the
original author, might be given too great a control over our collective culture.
Censorious heirs or purchasers of the copyright might prevent the reprinting
of a great work because they disagreed with its morals.
32
We might lose the
works of Fielding or Gibbon, because a legatee found them distasteful and
used the power of the copyright to suppress them. This is no mere fantasy,
Macaulay tells us. After praising the novels of Samuel Richardson in terms
that, to modern eyes, seem a little fervid (No writings, those of Shakespeare
excepted, show more profound knowledge of the human heart), Macaulay
recounts the story of Richardsons grandson, a clergyman in the city of
London. Though a most upright and excellent man, the grandson had con-
ceived a strong prejudice against works of ction, thought all novel-reading
not only frivolous but sinful, and had never thought it right to read one of
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his grandfathers books.
33
Extended copyright terms might hand over the
copyright to such a man. The public would lose, not because they had to pay
exorbitant prices that denied some access to the work, but because the work
would be altogether suppressed. Richardsons novelsPamela, Clarissa Har-
lowe, and so onare now the preserve of the classroom rather than the draw-
ing room, so this might not seem like much of a loss. But Macaulays next
example is not so easy to dismiss.
One of the most instructive, interesting, and delightful books in our language is
Boswells Life of Johnson. Now it is well known that Boswells eldest son considered
this book, considered the whole relation of Boswell to Johnson, as a blot in the
escutcheon of the family. He thought, not perhaps altogether without reason, that
his father had exhibited himself in a ludicrous and degrading light. And thus he
became so sore and irritable that at last he could not bear to hear the Life of Johnson
mentioned. Suppose that the law had been what my honourable and learned friend
wishes to make it. Suppose that the copyright of Boswells Life of Johnson had be-
longed, as it well might, during sixty years, to Boswells eldest son. What would have
been the consequence? An unadulterated copy of the nest biographical work in the
world would have been as scarce as the rst edition of Camdens Britannia.
34
From more recent examples we can see that outright suppression is not the
only thing to fear. The authors heirs, or the corporations which have purchased
their rights, may keep policing the boundaries of the work long after the original
author is dead. In 2001, Alice Randall published The Wind Done Gone. As its ti-
tle might indicate, The Wind Done Gone was a 220-page critique of and reaction
to the world of Gone With the Wind by Margaret Mitchell.
35
Most crucially,
perhaps, it was a version of Gone With the Wind told from the slaves point of
view. Suddenly the actions of Rhett (R), Scarlett (Other), and an obviously
gay Ashley (Dreamy Gentleman) come into new perspective through the eyes
of Scarletts mulatto half-sister. Mitchells estate wanted to prevent publication
of the book. At rst they were successful.
36
As Yochai Benkler puts it,
Alice Randall, an African American woman, was ordered by a government ofcial
not to publish her criticism of the romanticization of the Old South, at least not in
the words she wanted to use. The ofcial was not one of the many in Congress and
the Administration who share the romantic view of the Confederacy. It was a fed-
eral judge in Atlanta who told Randall that she could not write her critique in the
words she wanted to usea judge enforcing copyright law.
37
They killed Miss Scarlett! the astonished trial judge said after reading
Randalls book. My colleague Jennifer Jenkins, one of the lawyers in the case,
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recounts that the judge saw the case in relentlessly physical terms, seeing the
parody as a bulldozer and Gone With the Wind as a walled country estate into
which the bulldozer had violently trespassed. He was consequently unimpressed
with the claim that this bulldozer was protected by the First Amendment.
Eventually, the court of appeals overturned the district courts judgment.
38
Fifty-two years after Margaret Mitchells death, it was a hotly debated point
how much leeway copyright gave to others to comment upon, critique, embel-
lish upon, and parody the cultural icon she had conjured up.
A NATURAL RIGHT?
To some people, my argument so farand Jeffersons and Macaulayswill
seem to miss the point. They see intellectual property rights not as an incen-
tive, a method of encouraging the production and distribution of innova-
tion, but as a natural or moral right. My book is mine because I wrote it, not
because society or the law gives me some period of exclusivity over allowing
the copying of its contents. My invention is mine because it came from my
brain, not because the law declares a twenty-year monopoly over its produc-
tion or distribution. My logo is mine because I worked hard on it, not be-
cause the state grants me a trademark in order to lower search costs and
prevent consumer confusion. One answer is simply to say In the United
States, the framers of the Constitution, the legislature, and the courts have
chosen to arrange things otherwise. In copyright, patent, and trademark
lawdespite occasional deviationsthey have embraced the utilitarian view
instead.
Broadly speaking, that answer is correct.
39
It also holds, to a lesser extent, in
Britain. Even in the droits dauteur countries, which have a markedly different
copyright law regime, it largely holds for their patent and trademark law
systems, and utilitarian strands suffuse even the sacred rights of authors. So,
on a national level, we have rejected or dramatically limited the natural rights
view, and on an international level, we have rejected it in industrial
propertypatent and trademarkand modied it in copyright.
I think this answer is correct and important, but we have an obligation to
go further. Partly that is because intuitions about ownership coming naturally
with labor or discovery continue to inuence the law. Partly it is because those
moral intuitions are important and appealing. Partly it is because we might
wish to modify or criticize our current system. Using the views of the framers,
or current law, to preempt discussion is unsatisfactoryeven though those
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views are of particular importance for the legal policy decisions we face in the
short run, the issues on which much of my argument is concentrated.
There are varying stated grounds for natural or moral rights in intellectual
creations. Some people may think the book is mine because I worked on it
a Lockean conception where I mix my sweat with these words and receive a
property right in the process.
For all its attractions, there are considerable difculties with such a view.
Even within the world of tangible property, Lockes theory is more compli-
cated than a simple equation of labor with property right. Jeffersons account
of property is actually closer to Lockes than many would realize. When
Jefferson points out the difculty in justifying a natural right even in an acre
of land, let alone a book, his premises are not radically different from Lockes.
The same is true when Jefferson says that [s]table ownership is the gift of
social law, and is given late in the progress of society. Even if natural right
does create the ground for the property claim, it is social law that shapes its
contours and guarantees its stability. Jefferson, of course, thought that was
particularly true for intellectual property rights. In that context, he felt the
natural rights argument was much weaker and the need for socially dened
purposive contours and limitations stronger.
Lockes own views on what we would think of as copyright are hard to deter-
mine. We do know that he had a strong antipathy to monopoliesparticularly
those affecting expression. He believed, for example, that giving publishers
monopolies over great public domain books caused a disastrous fall in quality.
Instead, he argued, such books should be open for all to compete to produce
the best edition. Of course, he was writing in the context of monopolistic
printing privilegesto which he was strongly opposedrather than of indi-
vidual authorial rights. Yet he went further and suggested that even for con-
temporary works, after a particular time in printsay fty yearsbooks
could be printed by anyone.
I demand whether, if another act for printing should be made, it be not reasonable that
nobody should have any peculiar right in any book which has been in print fty years,
but any one as well as another might have liberty to print it: for by such titles as these,
which lie dormant, and hinder others, many good books come quite to be lost.
40
This sounds like a strongly utilitarian argument, rather than one based on
labor and natural right. Of course, we are not bound by what Locke or Jefferson
thought. Still it is striking to see the turn to a utilitarian conception from both
of them.
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The Lockean tradition is not the only one, of course. Others believe that
the property right stems from the unique personality of each individualthe
congurations of your individual genius made manifest in the lines of your
sonnet. (Some limit the natural right to literary and expressive work; can a
mousetrap or a drug molecule express the riddle and wonder of the human
spirit?) Whatever their moral basis or their ambit, the common ground be-
tween these positions is the belief in a rationale for intellectual property rights
beyond the utilitarian concerns of Jefferson or Macaulay.
The norms embodied in the moral rights or natural rights tradition are
deeply attractiveat least to me. Many of us feel a special connection to our
expressive creationseven the humble ones such as a term paper or a birthday
poem. It is one of the reasons that the central moral rights in the French droits
dauteur, or authors rights, tradition resonate so strongly with us. The entitle-
ment of an author to be correctly attributed, to have some control over the in-
tegrity of his work, seems important regardless of its utilitarian functions.
Yet even as we nd this claim attractive, we become aware of the need to
nd limiting principles to it. It gives us pause to think that Margaret Mitchell
or her heirs could forbid someone parodying her work. Are there no free-
speech limitations? When other forms of authorship, such as computer pro-
grams, are brought into copyrights domain, does the power of the moral right
decrease, while the need to limit its scope intensies?
Then there is the question of length. How long is a natural right in expres-
sion or invention supposed to last? It seems absurd to imagine that Shake-
speares or Mozarts heirs, or those who had bought their copyrights, would
still be controlling the performance, reproduction, and interpretation of their
works hundreds of years after their death. If the rights are truly formed for a
nonutilitarian purpose, after all, why should they expire? The person who rst
acquires property rights in land by work or conquest passes those rights down
to heirs and buyers with the chain of transmission reaching to the present day.
Should copyright follow suit? Even in France, the home of the strongest form
of the droits dauteur and of the moral rights tradition, the answer to this
question was in the negative.
We owe a large part of the literary moral rights tradition to the immediate
aftermath of the French Revolution. In France before the Revolution, as in
England before the Statute of Anne, the rst true copyright legislation, the
regulation of publishing was through a set of privileges given to printers,
not rights given to authors. Publishers would have a guild-enforced monopoly
over certain titles. Their right was against competing publishers printing the
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list of titles over which they had the privilege. The Revolution abolished these
privileges and, at rst, put nothing in their place. On the other hand, as Carla
Hesses fascinating work reveals, there was intermittent interference by the
Prefecture of Police with those who copied most agrantly. One such pub-
lisher was sternly instructed by the police in these terms:
[A]ccording to the Declaration of the Rights of Man, liberty means only the free-
dom to do what does not harm others; and that it harms others to appropriate the
work of an author, because it is an infringement of the sacred right of property; and
that such an enterprise, if it were to remain unpunished, would deprive citizens of
the instruction they await from celebrated authors like M. Bernardin de St. Pierre,
because no author would want to consecrate his labors to the instruction of his age
if piracy were ever authorized.
41
Note the interesting mixture of the language of the sacred rights of property
and the strong utilitarian justication which cites effects on future literary
production and the instruction of citizens.
More expansive conceptions of the rights of authors and, particularly, of
publishers were also offered. Even before the Revolution, publishers had been
making the arguments that their privileges were a form of property rights and
had the very good sense to hire the young Diderot to make those arguments.
Hesse quotes his words:
What form of wealth could belong to a man, if not a work of the mind, . . . if not his
own thoughts, . . . the most precious part of himself, that will never perish, that will
immortalize him? What comparison could there be between a man, the very substance
of man, his soul, and a eld, a tree, a vine, that nature has offered in the beginning
equally to all, and that an individual has only appropriated through cultivating it?
42
Diderots theme is that authors rights should actually be stronger than other
property rights for two reasons. First, they relate to the very essence of the per-
son, the most precious part of himself. Second, they are the only property
rights over something that has been added to the existing store of wealth
rather than taken from it. Authorial property, unlike property in land, adds to
the common store rather than detracting from it. Locke believed that a just
assertion of property rights must leave enough and as good for others in the
society. What could better satisfy this condition than a property right over
a novel that did not exist before I wrote it? One hundred years later Victor
Hugo echoed the same thoughts in a speech to the Conseil dEtat and pointed
out at the same time that literary property rights could potentially reconcile
troublesome authors to society and state.
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You feel the importance and necessity of defending property today. Well, begin by
recognising the rst and most sacred of all properties, the one which is neither a
transmission nor an acquisition but a creation, namely literary property . . . recon-
cile the artists with society by means of property.
43
Diderot wanted perpetual copyrights for authors and, agreeably to his employ-
ers, a correspondingly perpetual printing privilege. If the authors heirs could
not be traced, the copyright would devolve to the current publisher.
But as Hesse points out, there was another view of literary propertya
much more skeptical one put forward best by Condorcet. This view is also an
inuential part of the heritage of the droits dauteur, even if it is downplayed
in its contemporary rhetoric. Condorcet began by framing the question of lit-
erary property as one of political liberty. Does a man have the right to forbid
another man to write the same words that he himself wrote rst? That is the
question to resolve.
44
Like Jefferson, Condorcet is utterly unconvinced that
property rights in a book can be compared to those in a eld or a piece of fur-
niture which can be occupied or used by only one man. The type of property
is based on the nature of the thing. He concluded, again in language strik-
ingly similar to Jeffersons and Macaulays, that literary property was not a real
property right but a privilege, and one which must be assessed on a utilitarian
basis in terms of its contribution to enlightenment.
45
Any privilege therefore imposes a hindrance on freedom, placing a restriction
on the rights of other citizens; As such it is not only harmful to the rights of
others who want to copy, but the rights of all those who want copies, and that
which increases the price is an injustice. Does the public interest require that
men make this sacrice? That is the question that must be considered; In other
words, are [literary] privileges needed and useful or harmful to the progress of
enlightenment?
46
Condorcets conclusion was that they were not necessary and that they
could be harmful. The books that most furthered the progress of enlighten-
ment, the Encyclopdie, the works of Montesquieu, Voltaire, Rousseau, have
not enjoyed the benets of a privilege. Instead he seemed to favor a combi-
nation of subscriptions to authors with a trademark-like protection which
allowed an author to identify a particular edition of his work as the genuine
one, but which also allowed competing editions to circulate freely. In such a
market, he believed that the price of the competing editions would fall to
natural levelstoday we would call it marginal costbut the original au-
thor would still be able to charge a modest premium for the edition he
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authorized or certied because readers would prefer it as both more accurate and
more authentic. One possible analogy is to the history of the fashion industry
in the United States. It operates largely without design protection but relies
heavily on the trademarks accorded to favored designers and brands. There
are knockoffs of Armani or Balenciaga, but the wealthy still pay an enor-
mous premium for the real thing.
Condorcet also insisted that whatever protection was accorded to literary
works must not extend to the ideas within them. It is the truths within books
that make them usefula word that does not have the same luminance and
importance for us today as it did for the philosophers of the Enlightenment or
the French Revolution. He argued that any privilege given the author could not
extend to preventing another man from exhibiting the same truths, in perfectly
the same order, from the same evidence or from extending those arguments
and developing their consequences. In a line that Hesse rightly highlights, he
declares that any privileges do not extend over facts or ideas. Ce nest pas pour
les choses, les ides; cest pour les mots, pour le nom de lauteur.
In sum, Condorcet favors a limited privilege, circumscribed by an inquiry
into its effects in promoting progress and enlightenment. The privilege only
applies to expression and to the authors name, rather than to facts and
ideas. This is very much within the tradition of Jefferson and Macaulay.
Hesse argues, correctly I think, that two warring ideas shapedor are at
least useful ways of understandingthe development of the droits dauteur tra-
dition. On one side were Diderot and the publishers promoting an expansive
and perpetual natural authorial right, which nevertheless was supposed to vest
suspiciously easily in publishers. On the other was Condorcet, looking skepti-
cally at authorial privileges as merely one type of state interference with free
markets and the free circulation of books and ideas. In place of Diderots per-
petual natural right, Condorcet sketched out a regime that encourages produc-
tion and distribution by granting the minimum rights necessary for progress.
Different as they are, these two sides share a common ground. They both
focus, though for different reasons, on expressionthe imprimatur of the
authors unique human spirit on the ideas and facts that he or she transmits.
It is this original expression that modern copyright and the modern droits
dauteur actually cover. In todays copyright law, the facts and ideas in an au-
thors work proceed immediately into the public domain. In other work, I
have argued that by conning the property right tightly to the original ex-
pression stemming from the unique personality of an individual author the
law seems to accomplish a number of things simultaneously. It provides
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a conceptual basis for partial, limited property rights, without completely collaps-
ing the notion of property into the idea of a temporary, limited, utilitarian state
grant, revocable at will. [At the same time it offers] a moral and philosophical jus-
tication for fencing in the commons, giving the author property in something
built from the resources of the public domainlanguage, culture, genre, scien-
tic community, or what have you. If one makes originality of spirit the assumed
feature of authorship and the touchstone for property rights, one can see the
author as creating something entirely newnot recombining the resources of the
commons.
47
That is an account of the romantic theory of authorship in the context of
contemporary Anglo-American copyright law. But when one looks at the his-
tory of the French droits dauteur tradition, it is striking how well those words
describe that system as well. When the French legislature nally produced a
law of authors rights it turned out, in Hesses words, to reect an epistemo-
logically impure and unstable legal synthesis that combined an instrumentalist
notion of the public good with a theory of authorship based on natural rights.
Although it drew on a Diderotist rhetoric of the sanctity of individual creativity as
an inviolable right, it did not rigorously respect the conclusions Diderot drew from
this position. In contrast to the privilge dauteur of 1777, the law did not recognize
the authors claim beyond his lifetime but consecrated the notion, advanced rst by
Pierre Manuel to defend his edition of Mirabeau, that the only true heir to an
authors work was the nation as a whole. This notion of a public domain, of demo-
cratic access to a common cultural inheritance on which no particular claim could
be made, bore the traces not of Diderot, but of Condorcets faith that truths were
given in nature and, although mediated through individual minds, belonged ulti-
mately to all. Progress in human understanding depended not on private knowl-
edge claims, but on free and equal access to enlightenment. An authors property
rights were conceived as recompense for his service as an agent of enlightenment
through publication of his ideas. The law of 1793 accomplished this task of synthe-
sis through political negotiation rather than philosophical reasoningthat is, by
refashioning the political identity of the author in the rst few years of the Revolu-
tion from a privileged creature of the absolutist police state into a servant of public
enlightenment.
48
Hesse argues that this instability would continue through the revolutionary
period. I agree; indeed I would argue that it does so to the present day. Why?
The answer is simple. The moral rights view simply proved too much. Without
a limiting principleof time, or scope, or effectit seemed to presage a per-
petual and expansive control of expressive creations, and perhaps of inventions.
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Our intuition that this is a bad idea comes from our intuitive understanding
that Poetry can only be made out of other poems; novels out of other novels.
All of this was much clearer before the assimilation of literature to private
enterprise.
49
This is the ip side of the arguments that Diderot and later Hugo put
forward. Perhaps the romantic author does not create out of thin air. Perhaps
he or she is deeply embedded in a literary, musical, cultural, or scientic tra-
dition that would not ourish if treated as a set of permanently walled private
plots. Even within the droits dauteur tradition, we see a recognition that the
continuing progress of enlightenment and the sacred genius of authors might
both require a certain level of freedom in knowledge inputs and a certain level
of control over knowledge outputs. We see also the recognition that these two
requirements are in fundamental tension. When it comes to reconciling that
tension we must turn in part to utilitarian effects. In short, we should pay
attention to Jefferson and Macaulay and Condorcet, not just because their
thoughts shaped the legal and philosophical traditions in which we now
workthough that is particularly true in the case of the United Statesbut
because they were right, or at least more right than the alternative.
Of course, we could build a culture around a notion of natural, absolute,
and permanent rights to invention and expression. It is not a world many of
us would want to live in. There are exceptions of course. In a recent New York
Times op-ed, Mark Helprinauthor of Winters Taleargued that intellec-
tual property should become perpetual.
50
After all, rights in real estate or per-
sonal property do not expirethough their owners might. Why is it that
copyrights should only last for a lifetime plus seventy additional years, or
patents for a mere twenty? Mr. Helprin expresses respect for the genius of the
framers, but is unmoved by their rm command that rights be granted only
for limited times. He concludes that it was a misunderstanding. Jefferson
did not realize that while ideas cannot be owned, their expression can. Whats
more, the framers were misled by their rustic times. No one except perhaps
Hamilton or Franklin might have imagined that services and intellectual
property would become primary elds of endeavor and the chief engines of
the economy. Now they are, and it is no more rational to deny them equal
status than it would have been to conscate farms, ropewalks and other forms
of property in the 18th century. Poor Jefferson. How lucky we are to have Mr.
Helprin to remedy the consequences of his lack of vision.
Or perhaps not. Think of the way that Jefferson traced the origins of the
mechanical arts used in the elevators and hopper-boys all the way back to
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ancient Persia. (In Mr. Helprins utopia, presumably, a royalty stream would
run to Cyrus the Greats engineers.) Jeffersons point was that for the process
of invention to work, we need to conne narrowly the time and scope of the
state-provided monopoly, otherwise further inventions would become impos-
sible. Each process or part of a new invention would risk infringing a myr-
iad of prior patents on its subcomponents. Innovation would strangle in a
thicket of conicting monopolies with their roots vanishing back in time. Pre-
sumably the title of Mr. Helprins excellent novel would require clearance
from Shakespeares heirs.
Of course, one could construct a more modest Lockean idea of intellectual
property
51
building on the notion of enough and as good left over for oth-
ers and drawing the limits tightly enough to avoid the worst of Mr. Helprins
excesses. But as one attempts to do this systematically, the power of the Jeffer-
sonian vision becomes all the more apparentat least as a starting place.
The Jefferson Warning will play an important role in this book. But my
arguments here have implications far beyond Jeffersons time, country, or con-
stitutional tradition. In the last analysis, I hope to convince you of the impor-
tance of the Jefferson Warning or the views of Macaulay not because they are
famous authorities and revered thinkers or because they framed constitutions
or debated legislation. I wish to convince you that their views are important
because they encapsulate neatly an important series of truths about intellec-
tual property. We should listen to the Jefferson Warning not because it is pres-
tigious but because of its insight. As the Diderot-Condorcet debates point
out, the questions on which Jefferson and Macaulay focused do not disappear
merely because one embraces a philosophy of moral rightsif anything, they
become more pressing, particularly when one comes to dene the limits of
intellectual property in scope and time. I ask that those readers who remain
leery of the Jeffersonian focus concentrate on that last issue. In an era when
we have been expanding intellectual property rights relentlessly, it is a crucial
one. If the Jefferson Warning produces in my unconvinced reader even a
slight queasiness about the likely effects of such a process of expansion, it will
have done its jobthough in fact the tradition it represented was much richer
than a simple utilitarian series of cautions.
A TRADITION OF SKEPTICAL MINIMALISM
Eighteenth- and nineteenth-century intellectual property debates went be-
yond Macaulays antimonopolist focus on price, access, quality, and control of
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the nations literary heritage. While Macaulay is the best-remembered English
skeptic from the 1840s, there were other, more radical skeptics who saw copy-
right primarily as a tax on literacy or a tax on knowledge, identical in its
effects to the newspaper stamp taxes.
52
This was a time when mass literacy and
mass education were the hotly debated corollaries to the enlargement of the
franchise. The radical reformers looked with hostility on anything that
seemed likely to raise the cost of reading and thus continue to restrict political
and social debate to the wealthier classes. Macaulay worried about a world in
which a copy of Clarissa would . . . [be] as rare as an Aldus or a Caxton.
53
His more radical colleagues saw copyrightto use our ugly jargon rather than
theirsas one of the many ways in which state communications policy is set
and the communicative landscape tilted to favor the rich and powerful.
54
Macaulay worried about the effects of monopoly on literature and culture. All
of them worried about the effects of copyright on democracy, on speech, on
education. In the world of the Internet, these skeptics too have their contem-
porary equivalents.
Patent law also attracted its share of attacks in the mid-nineteenth century.
A fusillade of criticism, often delivered by economists and cast in the language
of free trade, portrayed the patent system as actively harmful.
At the annual meeting of the Kongress deutscher Volkswirthe held in Dresden,
September 1863, the following resolution was adopted by an overwhelming major-
ity: Considering that patents hinder rather than further the progress of inven-
tion; that they hamper the prompt general utilization of useful inventions; that on
balance they cause more harm than benet to the inventors themselves and, thus,
are a highly deceptive form of compensation; the Congress of German Economists
resolves: that patents of invention are injurious to common welfare.
55
In the Netherlands, the patent system was actually abolished in 1869 as a re-
sult of such criticisms. Observers in a number of other countries, including
Britain, concluded that their national patent systems were doomed. Various
proposals were made to replace patents, with state-provided prizes or bounties
to particularly useful inventions being the most popular.
56
These snippets are hardly sufcient to constitute any kind of survey of crit-
ical reactions to intellectual property systems, but I believe that nevertheless
they give us some sense of typical debates. What do these debates tell us?
From the early days of intellectual property as we know it now, the main
objections raised against it were framed in the language of free trade and
anti-monopoly. In the United States, the founding generation of intellectu-
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als had been nurtured on the philosophy of the Scottish Enlightenment and
the history of the struggle against royal monopolies. They saw the arguments
in favor of intellectual property but warned again and again of the need to cir-
cumscribe both its term and its scope. This is the point at the heart of Jeffer-
sons letter. This is why he insisted that we understand the policy implications
of the differences between tangible property and ideas, which like re are
expansible over all space, without lessening their density in any point.
What were the concerns of these early critics? They worried about intellec-
tual property producing articial scarcity, high prices, and low quality. They
insisted that the benets of each incremental expansion of intellectual property
be weighed against its costs. Think of Macaulay discussing Johnsons prefer-
ence for a shin of beef rather than another slice of postmortem copyright pro-
tection. They worried about its justice; given that we all learn from and build
on the past, do we have a right to carve out our own incremental innovations
and protect them by intellectual property rights?
57
Price aside, they also wor-
ried that intellectual property (especially with a lengthy term) might give too
much control to a single individual or corporation over some vital aspect of sci-
ence and culture. In more muted fashion, they discussed the possible effects
that intellectual property might have on future innovation. The most radical
among them worried about intellectual propertys effects on political debate,
education, and even control of the communications infrastructure, though
they did not use that particular phrase. But the overwhelming theme was the
promotion of free trade and a corresponding opposition to monopolies.
Now if we were to stop here and simply require that todays policy makers,
legislators, and judges recite the Jefferson Warning before they rush off to make
new intellectual property rules for the Internet and the genome, we would
have accomplished a great deal. National and international policy makers are
keen to set the rules of the road for the digital age. If they would momen-
tarily pause their excited millenarian burbling and read the points scratched
out with a quill pen in 1813, or delivered (without PowerPoint support) on the
oor of the House of Commons in the 1840s, we would be better off. Every-
one is beginning to understand that in the world of the twenty-rst century
the rules of intellectual property are both vital and contentious. How good it
would be then if our debate on intellectual property policy were as vigorous
and as informed as the debates of the nineteenth century. (Though we might
hope it would also be more democratic.)
And yet . . . there is much that is missing from the skepticism of the eigh-
teenth and nineteenth centuries and much that remains unclear. Look at the
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structure of these comments; they are framed as criticisms of intellectual
property rather than defenses of the public domain or the commons, terms
that simply do not appear in the debates. There is no real discussion of the
world of intellectual propertys outside, its opposite. Most of these critics take
as their goal the prevention or limitation of an articial monopoly; without
this monopoly our goal is to have a world ofwhat? The assumption is that
we will return to a norm of freedom, but of what kind? Free trade in expres-
sion and innovation, as opposed to monopoly? Free access to expression and
innovation, as opposed to access for pay? Or free access to innovation and ex-
pression in the sense of not being subject to the right of another person to
pick and choose who is given access, even if all have to pay some at fee? Or is
it common ownership and control that we seek, including the communal
right to forbid certain kinds of uses of the shared resource? The eighteenth-
and nineteenth-century critics brushed over these points; but to be fair, we
continue to do so today. The opposite of property, or perhaps we should say
the opposites of property, are much more obscure to us than property itself.
For the most part, the antimonopolist view of intellectual property makes
a simple case. Monopolies are bad. Have as few as possible and make them as
narrow and as short as possible. This is a ne principle, but it falls short of an
afrmative explanation and defense of the role of the public domain or the
commons in enabling creativity, culture, and science. That is a shame because
just as intellectual property is different from tangible property, so too is its
opposite, its outside.
What are those opposites? The two major terms in use are the public do-
main and the commons. Both are used in multiple waysprobably a good
thing. The public domain is material that is not covered by intellectual prop-
erty rights. Material might be in the public domain because it was never capa-
ble of being owned. Examples would be the English language or the formulae
of Newtonian physics. Alternatively, something might be in the public do-
main because rights have expired. The works of Shakespeare or the patents
over powered ight are examples.
Some denitions of the public domain are more granular. They focus not
only on complete works but on the reserved spaces of freedom inside intellec-
tual property. The public domain would include the privilege to excerpt short
quotations in a review. This vision is messier, but more instructive. If one uses
a spatial metaphor, the absolutist vision is a tessellated map. Areas of private
property are neatly delineated from areas of the public domain. Mozarts plot
sits next to that of Britney Spears; one public, the other private. In the granu-
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lar view, the map is more complex. Ms. Spears plot is cut through with rights
to make fair use, as well as with limitations on ownership of standard themes.
Instead of the simple tiled map, the granular vision has private plots with
public roads running through them.
In popular discussion, we tend to use the absolutist view of both property
and the public domain. Lawyers prefer the more complex view of property
and are coming slowly to have a similarly complex view of the public domain.
That is the denition I will be using.
The term commons is generally used to denote a resource over which
some group has access and use rightsalbeit perhaps under certain condi-
tions. It is used in even more ways than the term public domain. The rst
axis along which denitions of the term commons vary is the size of the
group that has access rights. Some would say it is a commons only if the
whole society has access. That is the view I will take here.
The other difference between public domain and commons is the extent of
restrictions on use. Material in the public domain is free of property rights.
You may do with it what you wish. A commons can be restrictive. For exam-
ple, some open source software makes your freedom to modify the software
contingent on the condition that your contributions, too, will be freely open
to others. I will discuss this type of commons in Chapter 8.
So these are working denitions of public domain and commons. But why
should we care? Because the public domain is the basis for our art, our science,
and our self-understanding. It is the raw material from which we make new
inventions and create new cultural works. Why is it so important? Let us start
with the dry reasons.
Information and innovation are largely nonrival and nonexcludable goods.
This is Jeffersons point, though expressed in less graceful language. It has
some interesting corollaries. Information is hard to value until you have it,
but once you have it, how can you dispossess yourself of it? The apple can be
taken back by the merchant if you decide not to buy. The facts or the formu-
lae cannot. The moment when you might have decided to pay or not to pay
is already over. The great economist Kenneth Arrow formalized this insight
about information economics,
58
and it profoundly shapes intellectual prop-
erty policy. (To a large extent, for example, the requirement of patent disclo-
sure attempts to solve this problem. I can read all about your mousetrap but
I am still forbidden from using it. I can decide whether or not to license your
design at that point.) But for all the material in the public domain, where
no intellectual property right is necessary, this point is solved elegantly by
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having the information be free as the air to common use. All of us can use
the same store of information, innovation, and free culture. It will be available
at its cost of reproductionclose to zeroand we can all build upon it with-
out interfering with each other. Think of the English language, basic business
methods, tables of logarithms, the Pythagorean theorem, Shakespeares insights
about human nature, the periodic table, Ohms law, the sonnet form, the
musical scale.
Would you have paid to purchase access to each of these? I might tell you
that English was a superior communication toola really good command
language for your cognitive operating system. There could be levels of access
with corresponding prices. Would you pay to get access to English Profes-
sional Edition? We can certainly imagine such a way of organizing languages.
(To some extent, scribal conventions operated this way. The languages of the
professions still do. One paid for access to law French in the common law
courts of England. One pays for an interpreter of contemporary legal jargon
in todays legal system. But even there the language is free to the autodidact.)
We can imagine language, scientic knowledge, basic algebra, the tonic scale,
or the classics of four-hundred-year-old literature all being available only as
property. Those who had the highest value for use would purchase them.
Those who did not value them highlywhether because they could not know
what could be built with them until they had done so or because they did not
have the moneywould not. What would this world, this culture, this science,
this market look like?
It would probably be very inefcient, the economists tell us. Perfect infor-
mation is a dening feature of the perfect market. The more commodied
and restricted our access to information, the less efcient the operation of the
market, the more poorly it allocates resources in our society. (The permanent
and in some sense insoluble tension between the need to provide incentives to
generate information, thus raising its cost, and the need to have access to per-
fect information for efciency is the central feature of our intellectual property
policy.)
59
When we commodify too much we actually undermine creativity,
since we are raising the price of the inputs for future creationswhich might
themselves be covered by intellectual property rights. But inefcient is too
bloodless a way to describe this world. It would be awful.
Our markets, our democracy, our science, our traditions of free speech, and
our art all depend more heavily on a public domain of freely available material
than they do on the informational material that is covered by property rights.
The public domain is not some gummy residue left behind when all the good
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stuff has been covered by property law. The public domain is the place we
quarry the building blocks of our culture. It is, in fact, the majority of our cul-
ture. Or at least it has been.
I deliberately gave easy examples. It is obvious how unnecessary but also
how harmful it would be to extend property rights to language, to facts, to
business methods and scientic algorithms, to the basic structures of music,
to art whose creators are long dead. It is obvious that this would not produce
more innovation, more debate, more art, more democracy. But what about
the places where the value of the public domain is not obvious?
What if we were actually moving to extend patents to business methods, or
intellectual property rights to unoriginal compilations of facts? What if we had
locked up most of twentieth-century culture without getting a net benet in
return? What if the basic building blocks of new scientic elds were being
patented long before anything concrete or useful could be built from them?
What if we were littering our electronic communication space with digital
barbed wire and regulating the tiniest fragments of music as if they were stock
certicates? What if we were doing all this in the blithe belief that more prop-
erty rights mean more innovation? The story of this book is that we are.
The Jefferson Warning is important. It is, however, just a warning. While it
would be excellent to print it on pocket cards and hand it to our elected rep-
resentatives, that alone will not solve the most pressing problems we face. In
the chapters that follow, I shall try to go further. In Chapter 3, I set the process
of expansion we are engaged inour second enclosure movementin per-
spective by comparing it to the original enclosures of the grassy commons of
old England. In Chapter 4, I jump from the world of the fteenth or nine-
teenth century to the world of the twenty-rst, from elevators and grain hop-
pers to video recorders, the Internet, and le-sharing services. I use the story
of several key legal disputes to illustrate a broader historythe history of in-
tellectual propertys struggle with communications technologies that allow
people to copy more cheaply. Strangely enough, the Jefferson Warning will be
crucial in understanding the debate over copyright online and, in particular,
in understanding the fear that drives our current policy making, a fear I refer
to as the Internet Threat.
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3
The Second Enclosure Movement
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The law locks up the man or woman
Who steals the goose from off the common
But leaves the greater villain loose
Who steals the common from off the goose.
The law demands that we atone
When we take things we do not own
But leaves the lords and ladies ne
Who take things that are yours and mine.
The poor and wretched dont escape
If they conspire the law to break;
This must be so but they endure
Those who conspire to make the law.
The law locks up the man or woman
Who steals the goose from off the common
And geese will still a common lack
Till they go and steal it back.
[Anon.]
1
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In ts and starts from the fteenth to the nineteenth century, the English com-
mons was enclosed.
2
Enclosure did not necessarily mean physical fencing,
though that could happen. More likely, the previously common land was sim-
ply converted into private property, generally controlled by a single landholder.
The poem that begins this chapter is the pithiest condemnation of the
process. It manages in a few lines to criticize double standards, expose the
controversial nature of property rights, and take a slap at the legitimacy of
state power. And it does this all with humor, without jargon, and in rhyming
couplets. Academics should take note. Like most criticisms of the enclosure
movement, the poem depicts a world of rapacious, state-aided privatization,
a conversion into private property of something that had formerly been
common property or perhaps had been outside the property system altogether.
One kind of stealing is legal, says the poet, because the state changes the law
of property to give the lords and ladies a right over an area formerly open to
all. But let a commoner steal something and he is locked up.
The anonymous author was not alone in feeling indignant. Thomas More
(one of only two saints to write really good political theory) made similar
points, though he used sheep rather than geese in his argument. Writing in
the sixteenth century, he had argued that enclosure was not merely unjust in
itself but harmful in its consequences: a cause of economic inequality, crime,
and social dislocation. In a wonderfully bizarre passage he argues that sheep
are a principal cause of theft. Sheep? Why, yes.
[Y]our sheep that were wont to be so meek and tame, and so small eaters, now, as I
hear say, be become so great devourers and so wild, that they eat up, and swallow
down the very men themselves. They consume, destroy, and devour whole elds,
houses, and cities.
Who were these sheep? Bizarre Dolly-like clones? Transgenic killer rams? No.
More meant only that under the economic lure of the wool trade, the noble-
men and gentlemen were attempting their own enclosure movement.
[They] leave no ground for tillage, they enclose all into pastures; they throw down
houses; they pluck down towns, and leave nothing standing, but only the church to
be made a sheep-house. . . . Therefore that one covetous and insatiable cormorant
and very plague of his native country may compass about and enclose many thou-
sand acres of ground together within one pale or hedge, the husbandmen be thrust
out of their own.
3
The sheep devour all. The dispossessed husbandmen now nd themselves
without land or money and turn instead to theft. In Mores vision, it is all very
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simple. Greed leads to enclosure. Enclosure disrupts the life of the poor farmer.
Disruption leads to crime and violence.
Writing 400 years later, Karl Polanyi echoes More precisely. He calls the
enclosure movement a revolution of the rich against the poor and goes
on to paint it in the most unattering light. The lords and nobles were up-
setting the social order, breaking down ancient law and custom, sometimes
by means of violence, often by pressure and intimidation. They were liter-
ally robbing the poor of their share in the common. . . .
4
And turning
them to beggars and thieves. The critics of enclosure saw other harms too,
though they are harder to classify. They bemoaned the relentless power of
market logic to migrate to new areas, disrupting traditional social relation-
ships and perhaps even views of the self, or the relationship of human be-
ings to the environment. Fundamentally, they mourned the loss of a form
of life.
So much for the bad side of the enclosure movement. For many economic
historians, everything I have said up to now is the worst kind of sentimental
bunk, romanticizing a form of life that was neither comfortable nor noble,
and certainly not very egalitarian. The big point about the enclosure movement
is that it worked; this innovation in property systems allowed an unparalleled
expansion of productive possibilities.
5
By transferring inefciently managed
common land into the hands of a single owner, enclosure escaped the aptly
named tragedy of the commons. It gave incentives for large-scale investment,
allowed control over exploitation, and in general ensured that resources could
be put to their most efcient use. Before the enclosure movement, the feudal
lord would not invest in drainage systems, sheep purchases, or crop rotation
that might increase yields from the commonhe knew all too well that the
fruits of his labor could be appropriated by others. The strong private prop-
erty rights and single-entity control that were introduced in the enclosure
movement avoid the tragedies of overuse and underinvestment: more grain
will be grown, more sheep raised, consumers will benet, and fewer people
will starve in the long run.
6
If the price of this social gain is a greater concentration of economic
power, the introduction of market forces into areas where they previously
had not been so obvious, or the disruption of a modus vivendi with the
environmentthen, enclosures defenders say, so be it! In their view, the agri-
cultural surplus produced by enclosure helped to save a society devastated by
the mass deaths of the sixteenth century. Those who weep over the terrible ef-
fects of private property should realize that it literally saves lives.
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Now it is worth noting that while this view was once unchallenged,
7
recent
scholarship has thrown some doubts on the effects of enclosure on agricul-
tural production.
8
Some scholars argue that the commons was actually better
run than the defenders of enclosure admit.
9
Thus, while enclosure did pro-
duce the changes in the distribution of wealth that so incensed an earlier gen-
eration of critical historians, they argue that there are signicant questions
about whether it led to greater efciency or innovation. The pie was carved up
differently, but did it get bigger? The debate about these issues is little known,
however, outside the world of economic historians. Everyone knows that a
commons is by denition tragic and that the logic of enclosure is as true today
as it was in the fteenth century. I will not get involved in this debate. Assume
for the sake of argument that enclosure did indeed produce a surge in agricul-
ture. Assume, in other words, that converting the commons into private prop-
erty saved lives. This is the logic of enclosure. It is a powerful argument, but it
is not always right.
This is all very well, but what does it have to do with intellectual property?
I hope the answer is obvious. The argument of this book is that we are in the
middle of a second enclosure movement. While it sounds grandiloquent to call
it the enclosure of the intangible commons of the mind, in a very real sense
that is just what it is.
10
True, the new state-created property rights may be in-
tellectual rather than real, but once again things that were formerly thought
of as common property, or as uncommodiable, or outside the market alto-
gether, are being covered with new, or newly extended, property rights.
Take the human genome as an example. Again, the supporters of enclosure
have argued that the state was right to step in and extend the reach of property
rights; that only thus could we guarantee the kind of investment of time, in-
genuity, and capital necessary to produce new drugs and gene therapies.
11
To
the question, Should there be patents over human genes? the supporters of
enclosure would answer that private property saves lives.
12
The opponents of
enclosure have claimed that the human genome belongs to everyone, that it is
literally the common heritage of humankind, that it should not and perhaps
in some sense cannot be owned, and that the consequences of turning over the
human genome to private property rights will be dreadful, as market logic in-
vades areas which should be the farthest from the market. In stories about
stem cell and gene sequence patents, critics have mused darkly about the way
in which the state is handing over monopoly power to a few individuals and
corporations, potentially introducing bottlenecks and coordination costs that
slow down innovation.
13
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Alongside these accounts of the beneciaries of the new property scheme
run news stories about those who were not so fortunate, the commoners of
the genetic enclosure. Law students across America read Moore v. Regents of
University of California, a California Supreme Court case deciding that Mr.
Moore had no property interest in the cells derived from his spleen.
14
The
court tells us that giving private property rights to sources would slow the
freewheeling practice researchers have of sharing their cell lines with all and
sundry.
15
The doctors whose inventive genius created a billion-dollar cell line
from Mr. Moores naturally occurring raw material, by contrast, are granted
a patent. Private property rights here, by contrast, are a necessary incentive to
research.
16
Economists on both sides of the enclosure debate concentrate on
the efcient allocation of rights. Popular discussion, on the other hand,
doubtless demonstrating a reprehensible lack of rigor, returns again and again
to more naturalistic assumptions such as the essentially common quality of
the property involved or the idea that one owns ones own body.
17
The genome is not the only area to be partially enclosed during this second
enclosure movement. The expansion of intellectual property rights has been
remarkablefrom business method patents, to the Digital Millennium Copy-
right Act, to trademark anti-dilution rulings, to the European Database
Protection Directive.
18
The old limits to intellectual property rightsthe anti-
erosion walls around the public domainare also under attack. The annual
process of updating my syllabus for a basic intellectual property course pro-
vides a nice snapshot of what is going on. I can wax nostalgic looking back to
a ve-year-old text, with its condent list of subject matter that intellectual
property rights could not cover, the privileges that circumscribed the rights
that did exist, and the length of time before a work falls into the public domain.
In each case, the limits have been eaten away.
HOW MUCH OF THE INTANGIBLE
COMMONS SHOULD WE ENCLOSE?
So far I have argued that there are profound similarities between the rst enclo-
sure movement and our contemporary expansion of intellectual property, which
I call the second enclosure movement. Once again, the critics and proponents
of enclosure are locked in battle, hurling at each other incommensurable
claims about innovation, efciency, traditional values, the boundaries of the
market, the saving of lives, the loss of familiar liberties. Once again, opposi-
tion to enclosure is portrayed as economically illiterate: the beneciaries of
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enclosure telling us that an expansion of property rights is needed in order to
fuel progress. Indeed, the post-Cold War Washington consensus is invoked
to claim that the lesson of history itself is that the only way to get growth and
efciency is through markets; property rights, surely, are the sine qua non of
markets.
19
This faith in enclosure is rooted in a correspondingly deep pessimism about
the possibility of managing resources that are either commonly owned or
owned by no one. If all have the right to graze their herds on common land,
what incentive does anyone have to hold back? My attempt to safeguard the
future of the pasture will simply be undercut by others anxious to get theirs
while the getting is good. Soon the pasture will be overgrazed and all our ocks
will go hungry. In a 1968 article, Garrett Hardin came up with the phrase
that would become shorthand for the idea that there were inherent problems
with collectively managed resources: the tragedy of the commons.
20
The
phrase, more so than the actual arguments in his article, has come to exercise
considerable power over our policies today. Private propertyenclosureis
portrayed as the happy ending for the tragedy of the commons: when policy
makers see a resource that is unowned, they tend to reach reexively for the
solving idea of property. According to this view, enclosure is not a revolu-
tion of the rich against the poor, it is a revolution to save the waste of socially
vital resources. To say that some social resource is not owned by an individual,
that it is free as the air to common use, is automatically to conjure up the idea
that it is being wasted.
But if there are similarities between our two enclosures, there are also pro-
found dissimilarities; the networked commons of the mind has many different
characteristics from the grassy commons of Old England.
21
I want to concen-
trate here on two key differences between the intellectual commons and the
commons of the rst enclosure movement, differences that should lead us to
question whether this commons is truly tragic and to ask whether stronger in-
tellectual property rights really are the solution to our problems. These differ-
ences are well known, indeed they are the starting point for most intellectual
property law, a starting point that Jefferson and Macaulay have already laid
out for us. Nevertheless, reection on them might help to explain both the
problems and the stakes in the current wave of expansion.
Unlike the earthy commons, the commons of the mind is generally nonri-
val. Many uses of land are mutually exclusive: if I am using the eld for graz-
ing, it may interfere with your plans to use it for growing crops. By contrast, a
gene sequence, an MP3 le, or an image may be used by multiple parties; my
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use does not interfere with yours. To simplify a complicated analysis, this
means that the threat of overuse of elds and sheries is generally not a problem
with the informational or innovational commons.
22
Thus, one type of tragedy
of the commons is avoided.
The concerns in the informational commons have to do with a different
kind of collective action problem: the problem of incentives to create the re-
source in the rst place. The difculty comes from the assumption that infor-
mation goods are not only nonrival (uses do not interfere with each other),
but also nonexcludable (it is impossible, or at least hard, to stop one unit of
the good from satisfying an innite number of users at zero marginal cost).
Pirates will copy the song, the mousetrap, the drug formula, the brand. The
rest of the argument is well known. Lacking an ability to exclude, creators will
be unable to charge for their creations; there will be inadequate incentives to
create. Thus, the law must step in and create a limited monopoly called an
intellectual property right.
How about the argument that the increasing importance of information-
intensive products to the world economy means that protection must in-
crease? Must the information commons be enclosed because it is now a more
important sector of economic activity?
23
This was certainly one of the argu-
ments for the rst enclosure movement. For example, during the Napoleonic
Wars enclosure was defended as a necessary method of increasing the efciency
of agricultural production, now a vital sector of a wartime economy.
Here we come to another big difference between the commons of the mind
and the earthy commons. As has frequently been pointed out, information
products are often made up of fragments of other information products; your
information output is someone elses information input.
24
These inputs may
be snippets of code, discoveries, prior research, images, genres of work, cultural
references, or databases of single nucleotide polymorphismseach is raw
material for future innovation. Every increase in protection raises the cost of,
or reduces access to, the raw material from which you might have built those
future products. The balance is a delicate one; one Nobel Prizewinning econ-
omist has claimed that it is actually impossible to strike that balance so as to
produce an informationally efcient market.
25
Whether or not it is impossible in theory, it is surely a difcult problem in
practice. In other words, even if enclosure of the arable commons always pro-
duced gains (itself a subject of debate), enclosure of the information commons
clearly has the potential to harm innovation as well as to support it.
26
More
property rights, even though they supposedly offer greater incentives, do not
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necessarily make for more and better production and innovationsometimes
just the opposite is true. It may be that intellectual property rights slow down
innovation, by putting multiple roadblocks in the way of subsequent innova-
tion.
27
Using a nice inversion of the idea of the tragedy of the commons,
Heller and Eisenberg referred to these effectsthe transaction costs caused by
myriad property rights over the necessary components of some subsequent
innovationas the tragedy of the anticommons.
28
In short, even if the enclosure movement was a complete success, there are
important reasons to believe that the intangible world is less clearly a candi-
date for enclosure, that we should pause, study the balance between the world
of the owned and the world of the free, gather evidence. After all, even in
physical space, common property such as roads increases the value of the
surrounding private tracts. If there are limits to the virtues of enclosure even
there, how much more so in a world of intangible and nonrival goods, which
develop by drawing on prior creations? Yet the second enclosure movement
proceeds condently neverthelesswith little argument and less evidence.
To be sure, there is a danger of overstatement. The very fact that the changes
have been so one-sided makes it hard to resist exaggerating their impact. In
1918, Justice Brandeis condently claimed that [t]he general rule of law is,
that the noblest of human productionsknowledge, truths ascertained, con-
ceptions, and ideasbecome, after voluntary communication to others, free
as the air to common use.
29
That baselineintellectual property rights are
the exception rather than the norm; ideas and facts must always remain in the
public domainis still supposed to be our starting point.
30
It is, however, un-
der attack.
Both overtly and covertly, the commons of facts and ideas is being enclosed.
Patents are increasingly stretched to cover ideas that twenty years ago all
scholars would have agreed were unpatentable.
31
Most troubling of all are the
attempts to introduce intellectual property rights over mere compilations of
facts.
32
If U.S. intellectual property law had an article of faith, it was that un-
original compilations of facts would remain in the public domain, that this
availability of the raw material of science and speech was as important to the
next generation of innovation as the intellectual property rights themselves.
33
The system would hand out monopolies in inventions and in original expres-
sion, while the facts below (and ideas above) would remain free for all to build
upon. But this premise is being undermined. Some of the challenges are subtle:
in patent law, stretched interpretations of novelty and nonobviousness allow
intellectual property rights to move closer and closer to the underlying data
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layer; gene sequence patents come very close to being rights over a particular
discovered arrangement of dataCs, Gs, As, and Ts.
34
Other challenges are
overt: the European Database Protection Directive did (and various proposed
bills in the United States would) create proprietary rights over compilations of
facts, often without even the carefully framed exceptions of the copyright
scheme, such as the usefully protean category of fair use.
The older strategy of intellectual property law was a braided one: thread
a thin layer of intellectual property rights around a commons of material from
which future creators would draw.
35
Even that thin layer of intellectual property
rights was limited so as to allow access to the material when that was necessary
to further the goals of the system. Fair use allows for parody, commentary,
and criticism, and also for decompilation of computer programs so that
Microsofts competitors can reverse engineer Words features in order to make
sure their program can convert Word les. It may sound paradoxical, but in a
very real sense protection of the commons was one of the fundamental goals
of intellectual property law.
In the new vision of intellectual property, however, property should be
extended everywhere; more is better. Expanding patentable and copyrightable
subject matter, lengthening the copyright term, giving legal protection to
digital barbed wire, even if it is used to prevent fair use: each of these can be
understood as a vote of no condence in the productive powers of the com-
mons. We seem to be shifting from Brandeiss assumption that the noblest of
human productions are free as the air to common use to the assumption that
any commons is inefcient, if not tragic.
The expansion is more than a formal one. It used to be relatively hard to
violate an intellectual property right. The technologies of reproduction or the
activities necessary to infringe were largely, though not entirely, industrial.
Imagine someone walking up to you in 1950, handing you a book or a record
or a movie reel, and saying Quick! Do something the law of intellectual prop-
erty might forbid. (This, I admit, is a scenario only likely to come to the mind
of a person in my line of work.) You would have been hard-pressed to do so.
Perhaps you could nd a balky mimeograph machine, or press a reel-to-reel
tape recorder into use. You might manage a single unauthorized showing of the
moviethough to how many people? But triggering the law of intellectual
property would be genuinely difcult. Like an antitank mine, it would not be
triggered by the footsteps of individuals. It was reserved for bigger game.
This was no accident. The law of intellectual property placed its triggers
at the point where commercial activity by competitors could undercut the
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exploitation of markets by the rights holder. Copying, performance,
distributionthese were things done by other industrial entities who were in
competition with the owner of the rights: other publishers, movie theaters,
distributors, manufacturers. In practice, if not theory, the law was predomi-
nantly a form of horizontal industry regulation of unfair competitionmade
by the people in the affected industries for the people in the affected indus-
tries. The latter point is worth stressing. Congress would, and still does, liter-
ally hand over the lawmaking process to the industries involved, telling them
to draft their intra-industry contract in the form of a law, and then to return
to Congress to have it enacted. The public was not at the table, needless to say,
and the assumption was that to the extent there was a public interest involved
in intellectual property law, it was in making sure that the industries involved
got their act together, so that the ow of new books and drugs and movies
would continue. Members of the public, in other words, were generally thought
of as passive consumers of nished products produced under a form of intra-
industry regulation that rarely implicated any act that an ordinary person
would want, or be able, to engage in.
In the world of the 1950s, these assumptions make some sensethough we
might still disagree with the denition of the public interest. It was assumed
by many that copyright need not and probably should not regulate private,
noncommercial acts. The person who lends a book to a friend or takes a chap-
ter into class is very different from the company with a printing press that
chooses to reproduce ten thousand copies and sell them. The photocopier and
the VCR make that distinction fuzzier, and the networked computer threat-
ens to erase it altogether.
So how are things different today? If you are a person who routinely uses
computers, the Internet, or digital media, imagine a day when you do not
createintentionally and unintentionallyhundreds of temporary, evanes-
cent copies. (If you doubt this, look in the cache of your browser.) Is there a
day when you do not distribute or retransmit fragments of articles you have
read, when you do not seek to share with friends some image or tune? Is there
a day when you do not rework for your job, for your class work, or simply
for pastiche or fun, some of the digital material around you? In a networked
society, copying is not only easy, it is a necessary part of transmission, storage,
caching, and, some would claim, even reading.
36
As bioinformatics blurs the line between computer modeling and biologi-
cal research, digital production techniques blur the lines between listening,
editing, and remaking. Rip, mix, and burn, says the Apple advertisement. It
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marks a world in which the old regime of intellectual property, operating
upstream as a form of industrial competition policy, has been replaced. Intel-
lectual property is now in and on the desktop and is implicated in routine
creative, communicative, and just plain consumptive acts that each of us
performs every day. Suddenly, the triggers of copyrightreproduction,
distributioncan be activated by individual footsteps.
Of course, we would hope that in your daily actions you scrupulously ob-
served the rightsall the rightsof the companies that have interests in the
texts, tunes, images of celebrities, trademarks, business method patents, and
fragments of computer code you dealt with. Did you? Can you be sure? I teach
intellectual property, but I admit to some uncertainty.
I would not have imagined that a temporary image of a Web page captured
in the cache of my browser counted as a copy for the purposes of copyright
law.
37
I would have thought that it was fair use for a company to photocopy
articles in journals it subscribed to, and paid for, in order to circulate them to
its researchers.
38
If a conservative Web site reposted news articles from liberal
newspapers with critical commentary, that, too, would have seemed like fair
use.
39
I would have thought that it was benecial competition, and not a tres-
pass, for an electronic aggregator to gather together auction prices or airline
fares, so as to give consumers more choice.
40
I would not have thought that a
search engine that catalogued and displayed in framed format the digital
graphics found on the Internet would be sued for infringing the copyrights
of the owners of those images.
41
I would not have thought that I might be sued
for violating intellectual property law if I tried to compete with a printer com-
pany by making toner cartridges that were compatible with its printers.
42
The examples go on. I know that the research exemption in U.S. patent
law is very tightly limited, but I would have laughed if you had told me that
even a research university was forbidden from doing research unless that re-
search had no conceivable practical or academic worthin other words that
even in academia, in a project with no commercial goal, the research exemp-
tion only covered research that was completely pointless.
43
Why have an ex-
emption at all, in that case? I would have told an academic cryptography
researcher that he need not fear legal threats from copyright owners simply for
researching and publishing work on the vulnerabilities of copy protection
schemes.
44
I would not have thought that one could patent the idea of having
an electronic Dutch auction on the Internet, working out the daily prices of
a bundle of mutual funds through simple arithmetic, or buying something
online with one click.
45
I would have assumed that celebrities rights to control
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their images should end with their deaths, and that courts would agree that
those rights were tightly limited by the First Amendment. Yet, in each of these
cases, I would have been wrong, or at least I might be wrongenough that
a sane person would worry. Not all of the expansive claims eventually tri-
umphed, of course, but some did. Guessing which would and which would
not was hard even for me, though, as I said, I teach intellectual property law.
You, probably, do not.
In 1950 none of this would have mattered. Unless you were in some related
businessas a publisher, broadcaster, lm distributor, or what have youit
would have been hard for you to trigger the rules of intellectual property law.
If you were in such a business, you were probably very familiar with the rules
that governed your activities and well represented by corporate counsel who
knew them even better. Whats more, the rules were neither as complex nor as
counterintuitive as they are now. They also did not reach as far. The reach of
the rights has been expanded, and their content made more difcult to un-
derstand, at the exact moment that their practical effect has been trans-
formed. It is not merely that the triggers of intellectual property law can easily
be set off by individual footsteps. There are now many more triggers and their
trip wires are harder to see.
From the point of view of the content industries, of course, all this is fool-
ishness. It is not some undesirable accident that intellectual property has
come to regulate personal, noncommercial activity. It is absolutely necessary.
Think of Napster. When individuals engaging in noncommercial activity have
the ability to threaten the music or lm industrys business plan by engaging
in the very acts that copyright law always regulatednamely reproduction
and distributionof course it is appropriate for them, and the networks they
share on, to be subject to liability. Whats more, to the extent that copying
becomes cheaper and easier, it is necessary for us to strengthen intellectual
property rights. We must meet the greater danger of copying with more ex-
pansive rights, harsher penalties, and expanded protections, some of which
may indeed have the practical effect of reducing rights that citizens thought
they had, such as fair use, low-level noncommercial sharing among personal
friends, resale, and so on. Without an increase in private property rights, in
other words, cheaper copying will eat the heart out of our creative and cul-
tural industries. I call this claim the Internet Threat.
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4
The Internet Threat
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The conventional wisdom is that governments respond slowly to
technological change. In the case of the Internet, nothing could be
further from the truth. In 1994 and 1995, dot-com was still a
mystical term for many. Most stories about the Internet dealt with
sexual predation rather than possibilities of extreme wealth. Internet
commerce itself was barely an idea, and some of the most exciting
sites on the Web had pictures of coffeepots in university depart-
ments far away. (See, one would proudly say to a technological
neophyte friend when introducing him to the wonders of the Net,
the pot is empty and we can see that live from here! This changes
everything !) It was an innocent time. Yet the U.S. government was
already turning the wheels of intellectual property policy to respond
to the threat (and promise) of the Internet. More precisely, they
were trying to shape the future of the cumbersomely named Na-
tional Information Infrastructure, the ofcial name for the infor-
mation superhighway that it was presumed would replace the
immature technology of the Net. The government was wrong
about that, and about a lot else.
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The blueprint for new intellectual property policy online came from the
Patent and Trademark Ofce. That ofce promulgated rst a Green Paper and
then, after further hearings, a White Paper, on Intellectual Property and the
National Information Infrastructure.
1
As policy and legal documents these
are in one sense long out of date. Some of their legal arguments were success-
fully challenged. Some of their most important proposals were rejected, while
many others have become law. But as a starting point from which to trace the
frame of mind that has come to dominate intellectual property policy online,
they are hard to equal.
These documents contained proposals that nowadays would be seen as
fairly controversial. Internet service providers were said to be strictly liable
for copyright violations committed by their subscribers; that is to say, they
were legally responsible whether or not they knew about the violation or were
at fault in any way. Loading a document into your browsers transient cache
memory while reading it was said to be making a copy. There was more: the
beginnings of what later became the Digital Millennium Copyright Act,
2
making it illegal to cut through the digital fences which content providers put
around their products. The attitude toward fair use was particularly revealing.
At one point in the White Paper it was hinted that fair use might be a relic of
the inconveniences of the analog age, to be discarded now that we could have
automated fractional payments for even the most insignicant use.
3
(It was
noted, however, that some disagreed with this conclusion.) At another point,
fair use was described as a tax on rights holders and a subsidy to those
who beneted from it, such as educational institutions.
4
The White Paper also
suggested that while any potential loss to rights holders caused by the new
technology needed to be countered with new rights and new protections, any
potential gain to them through the new technology was simply theirs. Poten-
tial gain did not offset the need to compensate for potential loss.
So what views of intellectual property were we carrying forward into the In-
ternet age? Intellectual property is just like other property. Rights are presump-
tively absolute. Any limitations on them, such as fair use, are taxes on property
owners, subsidies to the society at large. It sounds like a perfect time to admin-
ister the Jefferson Warning I sketched out in Chapter 2. After all, Jefferson was
specically warning against each of these errors two hundred years ago. To nd
them in a student paper would be disappointingirritating, even. But this
document was the blueprint for the intellectual property regime of cyberspace.
But do these mistakes matter? How important is it that we get the rules of
intellectual property right? To me, a number of my colleagues, some librarians,
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and a few software gurus, the White Paper was more than just a bit of bad
policy in a technical eldlike a poorly drafted statute about the witnessing
of wills, say. When you set up the property rules in some new space, you de-
termine much about the history that follows. Property rules have a huge effect
on power relationships and bargaining positions. Think of rules setting out
water rights or the right to drive cattle over homesteaders land in the Ameri-
can West. But they also are part of a larger way of seeing the world; think of
the early-twentieth-century rules treating unions as conspiracies in restraint
of trade or the Supreme Court decisions that dispossessed the American
Indians on the theory that they did not comprehend the concept of property
and thus did not own the land being taken from them.
5
We were at a com-
parable point in the history of cyberspace. What was being set up here was
a vision of economy and culture, a frame of mind about how the world of
cultural exchange operates, and eventually a blueprint for our systems of com-
munication. At this stage, the range of possibilities is extremely wide. A lot of
different choices could be made, but subsequent changes would be harder and
harder as people and companies built their activities around the rules that had
been laid down. This was, in short, a tipping point where it was particularly
important that we make the right decisions.
Conventional political science told us there were a lot of reasons to fear that
we would not make the right decisions. The political process was going to be
particularly vulnerable to problems of capture by established industries, many
of whom would (rightly) see the Internet as a potential threat to their role as
intermediaries between artists and creators on the one hand and the public on
the other.
Intellectual property legislation had always been a cozy world in which the
content, publishing, and distribution industries were literally asked to draft
the rules by which they would live. The law was treated as a kind of contract
between the affected industries. Rationally enough, those industries would
wish to use the law not merely to protect their legitimate existing property
rights, but to make challenges to their basic business plans illegal. (Imagine
what would have happened if we had given the lamp-oil sellers the right to
dene the rules under which the newfangled electric light companies would
operate.) There would be no easy counterweight to these pressures, as Jessica
Litman points out in a wonderful set of reections on copyright lawmaking,
because the potential competitors to existing titans were just being born and
could thus be strangled safely in their cradles.
6
Certainly the public would
have little grasp as yet of what was at stake.
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In any event, when had the public played a role in intellectual property
legislation? That kind of law affected businesses with printing presses or TV
towers, not normal citizens. It did not help that the legislators were largely
both ignorant and distrustful of the technology of the Internetwhich was,
at the time, thought to be dominated by foreign hackers, suicidal cults,
pirates, and sleazy pornographers. (Terrorists and Nigerian spammers would
be added to the mix later.)
Given an area of law that legislators were happy to hand over to the affected
industries and a technology that was both unfamiliar and threatening, the
prospects for legislative insight were poor. Lawmakers were assured by lobbyists
a) that this was business as usual, that no dramatic changes were being made
by the Green or White papers; or
b) that the technology presented a terrible menace to the American cultural
industries, but that prompt and statesmanlike action would save the day; or
c) that layers of new property rights, new private enforcers of those rights, and
technological control and surveillance measures were all needed in order to
benet consumers, who would now be able to purchase culture by the sip
rather than by the glass in a pervasively monitored digital environment.
In practice, somewhat confusingly, these three arguments would often be
combined. Legislators statements seemed to suggest that this was a routine
Armageddon in which rm, decisive statesmanship was needed to preserve the
digital status quo in a profoundly transformative and proconsumer way. Read-
ing the congressional debates was likely to give one conceptual whiplash.
To make things worse, the press wasin 1995, at leastclueless about these
issues. It was not that the newspapers were ignoring the Internet. They were
paying attentionobsessive attention in some cases. But as far as the main-
stream press was concerned, the story line on the Internet was sex: pornogra-
phy, online predation, more pornography. The lowbrow press stopped there. To
be fair, the highbrow press was also interested in Internet legal issues (the reg-
ulation of pornography, the regulation of online predation) and constitutional
questions (the First Amendment protection of Internet pornography). Re-
porters were also asking questions about the social effect of the network (in-
cluding, among other things, the threats posed by pornography and online
predators).
There were certainly important issues within the areas the press was willing
to focus on, and I do not mean to trivialize them. I worked with a couple of
civil liberties groups in opposing the hapless Communications Decency Act,
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one of the most poorly drafted pieces of speech regulation ever to come out of
Congress.
7
It was a palpably unconstitutional statute, eventually struck down
by a unanimous Supreme Court.
8
Its proposals would have burdened the speech
of adults while failing to protect the interests of minors. Reporters loved the
topic of the Communications Decency Act. It was about sex, technology, and
the First Amendment. It foreshadowed the future of online speech regulation.
One could write about it while feeling simultaneously prurient, principled,
and prescient: the journalistic trifecta. For law professors who worked on dig-
ital issues, the Communications Decency Act was an easy topic to get the
public to focus on; we had the reporters and editors calling us, pleading for a
quote or an opinion piece.
Intellectual property was something quite different. It was occasionally
covered in the business pages with the same enthusiasm devoted to changes in
derivatives rules. Presented with the proposals in the Green and White Papers,
the reporters went looking for opinions from the Software Publishers Associa-
tion, the Recording Industry Association of America, or the Motion Picture
Association of America. This was not bias or lazinessto whom else would
they go? Who was on the other side of these issues? Remember, all of this
occurred before Napster was a gleam in Sean Fannings eye. Sean Fanning was
in middle school. Amazon.com was a new company and Google was not yet
a verb.
In this environment, convincing the legislature or the press that fundamental
public choices were implicated in the design of intellectual property rights for
the digital world was about as easy as convincing them that fundamental pub-
lic choices were implicated in the rules of tiddlywinks. My own experience is
probably representative. I remember trying to pitch an article on the subject
to a charming but uncomprehending opinion page editor at the Washington
Post. I tried to explain that decisions about property rules would shape the
way we thought about the technology. Would the relatively anonymous and
decentralized characteristics of the Internet that made it such a powerful tool
for global speech and debate come to be seen as a bug rather than a feature,
something to be xed to make the Net safe for protected content? The rules
would also shape the economic interests that drove future policy. Would we
try to build the system around the model of proprietary content dispensed in
tightly controlled chunks? Would fair use be made technologically obsoles-
cent? Would we undercut the various nontraditional methods of innovation,
such as free software, before they ever managed to establish themselves? What
would become of libraries in the digital world, of the ideal that access to
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books had important differences from access to Twinkies? After I concluded
this lengthy and slightly incoherent cri de coeur, there was a long pause; then
the editor said politely, Are you sure you couldnt make some of these points
about a free speech issue, like the Communications Decency Act, maybe?
I nally placed the piece in the Washington Times,
9
which was best known
at the time as the only metropolitan newspaper owned by the Unication
Church, familiarly referred to as the Moonies. This hardly counted as a direct
line to the popular imagination (though the articles mild criticisms elicited
an extraordinary reaction from the Clinton administrations lead ofcial on
intellectual property policythrowing me for several weeks into a surreal
world of secondhand threats, third-party leaks, and a hilarious back-and-forth
in the letters page).
10
Things were not completely one-sided. An unlikely group of critics had
formed: librarians, a few software developers, law professors, some Internet
libertarians. Of particular note was the Digital Future Coalition, which grew
to represent a broad range of interested groups and industries thanks in part
to the prescient analysis and remarkable energy of one of my colleagues, Peter
Jaszi.
11
Together with Pamela Samuelson, Jessica Litman, and a number of
other distinguished legal scholars, Peter turned his considerable intellectual
talents to explaining why writers, telecom companies, scientists, manufacturers
of consumer electronics, and a host of other groups should be interested in
the rules being debated. There had been a series of ofcial hearings in which
complaints were carefully collected and just as carefully ignored. This became
harder to do as the critics became more numerous and better organized. Nev-
ertheless, the currents were clearly running against them. It would be nice to
say that this was merely because of the clubby history of intellectual property
legislation, or the difculty in getting press attention, or the various issues of
industry capture and collective action problems. Yet this would be to miss a
vital element of the situation.
Conventional political science showed that there were structural reasons
why the legislative process was likely to succumb to industry capture.
12
The
reality turned out to be much worse. The real problem was not a political pro-
cess dominated by cynical power politics, nor an initial absence of critical
newspaper coverage, though both of those factors contributed. The real prob-
lem was that most of the proponents of the White Papers policies believed
their own arguments so deeply and sincerely that they saw any criticism of
those positions as either godless communism or hippy digital anarchism. (Fre-
quently, in fact, they clung to their arguments even when there was fairly
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strong evidence that they would actually be harming themselves by putting
these policies into effect. I will expand on this point later.) More importantly,
they succeeded in getting their story about the threats and promises of the
digital future accepted as the basis for all discussion of intellectual property
policy. It became the organizing set of principles, the master narrativecall it
what you will.
The heart of the story is beguilingly simple. The Internet makes copying
cheaper and does so on an unparalleled global scale. Therefore we must meet
the greater danger of illicit copying with more expansive rights, harsher penal-
ties, and expanded protections. True, as I pointed out before, some of these
expansions may indeed have the practical effect of reducing rights that citizens
thought they had, such as fair use, low-level noncommercial sharing among
personal friends, resale, and so on. But without an increase in private property
rights, cheaper copying will eat the heart out of our creative and cultural in-
dustries. I call this story the Internet Threat. It is a powerful argument and it
deserves some explanation.
Think back for a moment to the rst chapter and the difference between
Madame Bovary and the petunia. If the reason for intellectual property rights
is the nonrival and nonexcludable nature of the goods they protect, then
surely the lowering of copying and transmission costs implies a corresponding
need to increase the strength of intellectual property rights. Imagine a line. At
one end sits a monk painstakingly transcribing Aristotles Poetics. In the middle
lies the Gutenberg printing press. Three-quarters of the way along the line is a
photocopying machine. At the far end lies the Internet and the online version
of the human genome. At each stage, copying costs are lowered and goods
become both less rival and less excludable. My MP3 les are available to any-
one in the world running Napster. Songs can be found and copied with ease.
The symbolic end of rivalry comes when I am playing the song in Chapel
Hill, North Carolina, at the very moment that you are both downloading and
listening to it in Kazakhstannow that is nonrival.
THE LOGIC OF PERFECT CONTROL
My point is that there is a teleologya theory about how intellectual property
law must develop historicallyhidden inside the argument I call the Internet
Threat. The argument, which is touted endlessly by the content industries
and not without reasoncan be reduced to this: The strength of intellectual
property rights must vary inversely with the cost of copying. With high copying
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costs, one needs weak intellectual property rights if any at all. To deal with the
monk-copyist, we need no copyright because physical control of the manu-
script is enough. What does it matter if I say I will copy your manuscript, if I
must do it by hand? How will this present a threat to you? There is no need to
create a legal right to exclude others from copying, no need for a copy right.
As copying costs fall, however, the need to exclude increases. To deal with the
Gutenberg press, we need the Statute of Annethe rst copyright statute
and the long evolution of copyright it ushered in.
But then comes the Internet. To deal with the Internet, we need the Digital
Millennium Copyright Act,
13
the No Electronic Theft Act,
14
the Sonny Bono
Copyright Term Extension Act,
15
and perhaps even the Collections of Infor-
mation Antipiracy Act.
16
As copying costs approach zero, intellectual prop-
erty rights must approach perfect control. We must strengthen the rights,
lengthen the term of the rights, increase the penalties, and make noncommer-
cial illicit copying a crime. We must move outside the traditional realm of
copyright altogether to regulate the technology around the copyrighted mate-
rial. Companies are surrounding their digital materials with digital fences. We
must make it a violation of the law to cut those digital fences, even if you do
so to make a fair use of the material on the other side. We must prohibit the
making of things that can be used as fence-cuttersa prospect that worries
researchers on encryption. In the long run, we must get rid of the trouble-
some anonymity of the Internet, requiring each computer to have an individ-
ual ID. We must make click-wrap contracts enforceable, even on third
parties, even when you cannot read them before clickingso that you never
actually buy the software, music, movies, and e-books you download, merely
license them for a narrowly dened range of uses. We must create interlocking
software and hardware systems that monitor and control the material played
on those systemsso that songs can be licensed to particular computers at
particular times. Uses that the owners wish to forbid will actually be impossi-
ble, whether they are legal or not.
In other words, we must make this technology of the Internet, which was
hailed as the great technology of freedom, into a technology of control and
surveillance. The possibility of individuals circulating costless perfect digital
copies requires it. It would be facile (if tempting) to say we must remake the
Internet to make it safe for Britney Spears. The Internet Threat argument is
that we must remake the Net if we want digital creativitywhether in music
or software or movies or e-texts. And since the strength of the property rights
varies inversely with the cost of copying, costless copying means that the remade
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Net must approach perfect control, both in its legal regime and its technical
architecture.
Like any attractive but misleading argument, the Internet Threat has a lot
of truth. Ask the software company producing expensive, specialized
computer-assisted design programs costing thousands of dollars what happens
when the program is made available on a warez site or a peer-to-peer le-
sharing network. The upstart computer game company pinning its hopes and
its capital on a single new game would tell you the same thing. The easy avail-
ability of perfect, costless copies is a danger to all kinds of valuable cultural
and economic production. The story of the Internet Threat is not wrong, it is
simply dramatically incomplete in lots of ways. Here are two of them.
Costless Copying Brings Both
Costs and Benets
The Internet does lower the cost of copying and thus the cost of illicit copying.
Of course, it also lowers the costs of production, distribution, and advertising,
and dramatically increases the size of the potential market. Is the net result a
loss to rights holders such that we need to increase protection and control in
order to maintain a constant level of incentives? A large, leaky market may
actually provide more revenue than a small one over which ones control is
much stronger. Whats more, the same technologies that allow for cheap
copying also allow for swift and encyclopedic search enginesthe best devices
ever invented for detecting illicit copying. What the Net takes away with one
hand, it often gives back with the other. Cheaper copying does not merely
mean loss, it also means opportunity. Before strengthening intellectual prop-
erty rights, we would need to know whether the loss was greater than the gain
and whether revised business models and new distribution mechanisms could
avoid the losses while capturing more of the gains.
But wait, surely theft is theft? If the new technologies enable more theft of in-
tellectual property, must we not strengthen the laws in order to deal with the
problem? If some new technology led to a rash of car thefts, we might increase
police resources and prison sentences, perhaps pass new legislation creating new
crimes related to car theft. We would do all of this even if the technology in
question gave car owners signicant benets elsewhere. Theft is theft, is it not?
The answer in a word is no. Saying theft is theft is exactly the error that
the Jefferson Warning is supposed to guard against. We should not assume
that intellectual property and material property are the same in all regards. The
goal of creating the limited monopoly called an intellectual property right is
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to provide the minimum necessary incentive to encourage the desired level of
innovation. Anything extra is deadweight loss. When someone takes your car,
they have the car and you do not. When, because of some new technology,
someone is able to get access to the MP3 le of your new song, they have the
le and so do you. You did not lose the song. What you may have lost is the
opportunity to sell the song to that person or to the people with whom they
share the le. We should not be indifferent to this kind of loss; it is a serious
concern. But the fact that a new technology brings economic benets as well as
economic harm to the creation, distribution, and sale of intellectual property
products means that we should pause before increasing the level of rights,
changing the architecture of our communications networks, creating new
crimes, and so on.
Remember, many of the things that the content industries were concerned
about on the Internet were already illegal, already subject to suit and prose-
cution. The question is not whether the Internet should be an intellectual
property-free zone; it should not be, is not, and never was. The question is
whether, when the content industries come asking for additional or new rights,
for new penalties, for the criminalization of certain types of technology, we
should take into account the gains that the Internet has brought them, as well
as the costs, before we accede to their requests. The answer, of course, is that
we should. Sadly, we did not. This does not mean that all of the content in-
dustries attempts to strengthen the law are wrong and unnecessary. It means
that we do not know whether they are or not.
There is a fairly solid tradition in intellectual property policy of what I call
20/20 downside vision. All of the threats posed by any new technologythe
player piano, the jukebox, the photocopier, the VCR, the Internetare seen
with extraordinary clarity. The opportunities, however, particularly those which
involve changing a business model or restructuring a market, are dismissed as
phantoms. The downside dominates the eld, the upside is invisible. The story
of video recorders is the best-known example. When video recordersanother
technology promising cheaper copyingrst appeared, the reaction of movie
studios was one of horror. Their business plans relied upon showing movies in
theaters and then licensing them to television stations. VCRs and Betamaxes
t nowhere in this plan; they were seen merely as copyright violation devices.
Hollywood tried to have them taxed to pay for the losses that would be caused.
Their assumption? Cheaper copying demands stronger rights.
Having lost that battle, the movie studios tried to have the manufacturers
of the recording devices found liable for contributory copyright infringement;
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liable, in other words, for assisting the copyright violations that could be carried
out by the owners of Sony Betamaxes. This, of course, was exactly the same
legal claim that would be made in the Napster case. In the Sony case, however,
the movie companies lost. The Supreme Court said that recording of TV pro-
grams to time-shift them to a more convenient hour was a fair use.
17
The
movie studios claims were rejected.
Freed from the threat of liability, the price of video recorders continued to fall.
They ooded consumers houses at a speed unparalleled until the arrival of the
World Wide Web. All these boxes sitting by TVs now cried out for content, con-
tent that was provided by an emerging video rental market. Until the triumph of
DVDs, the videocassette rental market made up more than 50 percent of the
movie industrys revenues.
18
Were losses caused by video recorders? To be sure.
Some people who might have gone to see a movie in a theater because the TV
schedule was inconvenient could instead record the show and watch it later.
Videos could even be shared with friends and familiestattered copies of Disney
movies recorded from some cable show could be passed on to siblings whose
kids have reached the appropriate age. VCRs were also used for copying that was
clearly illicitlarge-scale duplication and sale of movies by someone other than
the rights holder. A cheaper copying technology denitely caused losses. But it
also provided substantial gains, gains that far outweighed the losses. Ironically,
had the movie companies won in the Sony case, they might now be worse off.
The Sony story provides us with some useful lessonsrst, this 20/20
downside vision is a poor guide to copyright policy. Under its sway, some
companies will invariably equate greater control with prot and cheaper
copying with loss. They will conclude, sometimes rightly, that their very exis-
tence is threatened, and, sometimes wrongly, that the threat is to innovation
and culture itself rather than to their particular way of delivering it. They will
turn to the legislature and the courts for guarantees that they can go on doing
business in the old familiar ways. Normally, the marketplace is supposed to
provide correctives to this kind of myopia. Upstart companies, not bound by
the habits of the last generation, are supposed to move nimbly to harvest the
benets from the new technology and to outcompete the lumbering di-
nosaurs. In certain situations, though, competition will not work:
if the dinosaurs are a cartel strong enough to squelch competition;
if they have enlisted the state to make the threatening technology illegal, de-
scribing it as a predatory encroachment on the rights of the old guard
rather than aggressive competition;
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if ingrained prejudices are simply so strong that the potential business bene-
ts take years to become apparent; or
if the market has locked in on a dominant standarda technology or an op-
erating system, sayto which new market entrants do not have legal access.
In those situations, markets cannot be counted on to self-correct. Unfortu-
nately, and this is a key point, intellectual property policy frequently deals
with controversies in which all of these conditions hold true.
Let me repeat this point, because it is one of the most important ones in
this book. To a political scientist or market analyst, the conditions I have just
described sound like a rarely seen perfect storm of legislative and market dys-
function. To an intellectual property scholar, they sound like business as usual.
In the case of the VCR wars, none of these factors obtained. The state re-
fused to step in to aid the movie companies by criminalizing the new tech-
nology. There were equally powerful companies on the other side of the issue
(the consumer electronics companies selling VCRs) who saw this new
market as a natural extension of a familiar existing marketaudio recorders.
There was no dominant proprietary technological standard controlled by the
threatened industry that could be used to shut down any threats to their
business model. The market was allowed to develop and evolve without pre-
mature legal intervention or proprietary technological lockout. Thus we
know in this case that the movie companies were wrong, that their claims of
impending doom from cheap copies were completely mistaken. The public
and, ironically, the industry itself beneted as a result. But the Sony case
is the exception rather than the rule. That is why it is so important. If com-
petition and change can be forbidden, we will get relatively few cases that
disprove the logic that cheaper copying must always mean stronger rights.
The natural experiments will never be allowed to happen. They will be
squelched by those who see only threat in the technologies that allow cheaper
copies and who can persuade legislators or judges to see the world their way.
The story line I describe here, the Internet Threat, will become the conven-
tional wisdom. In the process, it will make it much less likely that we will
have the evidence needed to refute it.
The Holes Matter as Much as the Cheese
The Sony case is important in another way. The Supreme Courts decision
turned on the judgment that it was a fair use under U.S. copyright law for
consumers to record television programs for time-shifting purposes. Since fair
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use comes up numerous times in this book, it is worth pausing for a moment
to explain what it is.
The content industries like to portray fair use as a narrow and grudging de-
fense against an otherwise valid case for copyright infringementas if the
claim were, Yes, I trespassed on your land, which was wrong, I admit. But I
was starving and looking for food. Please give me a break. This is simply in-
accurate. True, fair use is asserted as an afrmative defense; that is the way it
is brought up in a copyright case. But in U.S. law, fair uses are stated quite
clearly to be limitations on the exclusive rights of the copyright holderuses
that were never within the copyright holders power to prohibit. The defense
is not I trespassed on your land, but I was starving. It is I did not trespass
on your land. I walked on the public road that runs through it, a road you
never owned in the rst place. When society hands out the right to the copy-
right holder, it carves out certain areas of use and refuses to hand over control
of them. Again, remember the Jefferson Warning. This is not a presumptively
absolute property right. It is a conditional grant of a limited and temporary
monopoly. One cannot start from the presumption that the rights holder has
absolute rights over all possible uses and therefore that any time a citizen
makes use of the work in any way, the rights holder is entitled to get paid or
to claim piracy if he does not get paid. Under the sway of the story line I
called the Internet Threat, legislators have lost sight of this point.
So what is fair use? When I am asked this question by nonlawyers, I offer
to show them the actual provision in the copyright act. They recoil, clearly
imagining they are about to be shown something the size and complexity of
the tax code. Here is the statutory fair use provision in its entirety:
Sec. 107. - Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted
work, including such use by reproduction in copies or phonorecords or by any other
means specied by that section, for purposes such as criticism, comment, news re-
porting, teaching (including multiple copies for classroom use), scholarship, or re-
search, is not an infringement of copyright. In determining whether the use made of
a work in any particular case is a fair use the factors to be considered shall include
(1) the purpose and character of the use, including whether such use is of a com-
mercial nature or is for nonprot educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
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(4) the effect of the use upon the potential market for or value of the copyrighted
work.
The fact that a work is unpublished shall not itself bar a nding of fair use if such
nding is made upon consideration of all the above factors.
But this seems quite sensible, people often say, as though they had expected
both Byzantine complexity and manifest irrationality. (Perhaps they have had
some experience with legal matters after all.) The ones who think about it a
little longer realize that these factors cannot be mechanically applied. Look at
factor 3, for example. Someone who is making a parody frequently needs to take
large chunks of the parodied work. That is the nature of a parody, after all.
They might then sell the parody, thus also getting into trouble with factor 1.
And what about factor 4? Someone might quote big chunks of my book in a
devastating review that ruined any chance the book had of selling well. Come
to think of it, even a parody might have a negative effect on the potential
market for the parodied work. But surely those uses would still be fair? (In
both instances, the Supreme Court agrees that they are fair uses.)
In coming up with these hypothetical problem cases, the copyright novice
is probably closer to having a good understanding of the purpose of fair use
than many people who have studied it for years. In fact, the novices questions
shed light on all of the exceptions, limitations, and defenses to proprietary
rightsthe holes in the cheese of intellectual property. The scholars urge is to
nd one theory that explains all the possible applications of the fair use doc-
trine, to arrange all of the cases like targets and shoot a single arrow through
all of them. Perhaps fair use is designed to reduce the difculty of clearing rights
when it would be uneconomical or impossibly complex to do so: to reduce
the paperwork, hassle, delay, ignorance, and aggravation that economists refer
to under the sanguine name of transaction costs.
19
(Though the idea that
fair use is about transaction costs hardly explains some of the types of fair use
we care most aboutthe rights to parody, to criticize, to reverse engineer.) Or
perhaps fair use allows the rights of a transformative author to be trumped
only by a second transformative author, who is building on the rstthe par-
odist, reviewer, collage artist, or what have you.
20
(Then again, photocopying
for classroom use does not sound very transformative.) Could fair use be
dictated by the Constitution or by international free speech guarantees? In
this view, fair use provides a safety valve that allows copyright to coexist with
the First Amendment, property rights over speech to coexist with freedom of
expression.
21
After all, it is not entirely obvious how it could be constitutional to
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forbid me, in the name of a federal law, from translating Mein Kampf in or-
der to warn of the dangers of fascism or parodying some piece of art to sub-
versive effect.
Each of these ideas about fair use has much to recommend it, as do the
many other grand theories that have been offered to explain the puzzle. And
therein lies the problem.
Intellectual property is a brilliant social invention which presents us with
great benets but also with a multitude of dangers:
1. the danger that the monopoly is unnecessary to produce the innovation, or
that it is broader or lasts for longer than is necessary to encourage future
production;
2. that overly broad rights will chill speech, criticism, or scientic progress;
3. that it will restrict access in ways that discourage follow-on innovation;
4. that it will lead to industry concentration in a way that hurts consumers or
citizens while being less subject to antitrust regulation precisely because the
monopoly or oligopoly rests on intellectual property rights;
5. that it will establish strong network effects which cause the market to tip
over to some inefcient technology; and
6. that it will give the rights holder control over some technology outside the
range of the monopoly but closely linked to it.
The list of dangers goes on and on, and so does the list of exceptions, limi-
tations, and restraints designed to prevent them. We restrict the length of in-
tellectual property rights. (At least, we used to. The framers thought it so
important to do so that they put the need to have a limited term in the Con-
stitution itself; nevertheless both Congress and the Supreme Court seem to
have given up on that one.) We restrict the scope of intellectual property rights,
so that they cannot cover raw facts or general ideas, only the range of innova-
tion and expression in between. (At least, we used to. Developments in data-
base protection, gene patents, and business method patents are clearly eroding
those walls.) As with fair use, we impose limitations on the rights when we
hand them out in the rst place. The exclusive right conferred by copyright
does not include the right to prevent criticism, parody, classroom copying, de-
compilation of computer programs, and so on. (Though as the next chapter
shows, a number of recent legal changes mean that the practical ability to exer-
cise fair use rights is seriously threatened.)
These limitations on intellectual property do not t a single theory, unless
that theory is avoiding the multiple and evolving dangers of intellectual
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property itself. Even a single limitation such as fair use clearly responds to
many different concerns about the dangers of intellectual property rights. In-
deed it will evolve to t new circumstances. When computer programs were
rst clearly covered by copyright law, software engineers wondered if this would
cripple the industry. Why? Anyone who wishes to compete with a dominant
program needs to decompile it in order to make their program interopera-
ble, or simply better. For example, a new word processing program, no matter
how good, would be dead on arrival unless it could read all the les people had
created with the old, dominant word processing software. But to do this, the
engineers at the upstart company would have to take apart their competitors
program. In the process they would have to create temporary copies of the old
program, even though the nal productthe hot new softwarewould be
completely different from the old. Would this be a violation of copyright law?
In a series of remarkable and far-seeing cases involving such issues, the
courts said no.
22
Decompilation was fair use. The law of fair use had evolved
in the context of expressive, nonfunctional, stand-alone works such as books,
poems, songs. Now it was being applied to a functional product whose eco-
nomics depended strongly on network effectsmany types of programs are
useful only if they are widely used. Without interoperability, we could never
take our existing documents or spreadsheets or datasets and move to a new
program, even if it was better. One program would not be able to read the les
created by another. It would be as if language itself had been copyrighted. To
have said that the incidental copies created in the process of decompiling soft-
ware were actually infringements of copyright would have turned the law on
its head because of a technological accident (you needed temporarily to copy
the programs in order to understand how they worked and make yours work
with them) and a legal accident (copyright was now being used to regulate
functional articles of commerce: machines made of binary code). The dif-
ference between copying and reading, or copying and understanding, had
changed because of the technology. The context had changed because the law
was being stretched to cover new types of products, whose economics were very
different from those of novels. Rather than let the dominant software compa-
nies use copyright to stop others from making interoperable software, the courts
used an escape hatchfair useto prevent that danger and to uphold the basic
goal of copyright: encouraging progress in science and the useful arts.
This long story is told to make a simple point. The variegated and evolving
limitations on intellectual property are as important as the rights they constrain,
curtail, and dene. The holes matter as much as the cheese.
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What does this have to do with the Sony case? In that case, remember, the
Supreme Court had said that copying TV shows in order to time-shift was fair
use. The Court could simply have stopped there. It could have said, since
most of what consumers do is legal, there can be no claim of contributory or
vicarious infringement. Sony is not contributing to infringement since con-
sumers are not infringing copyright by copying shows in the rst place. In-
terestingly, though this is the heart of the ruling, the court went further. It
quoted some seemingly unrelated patent law doctrine on contributory infringe-
ment: A nding of contributory infringement does not, of course, remove
the article from the market altogether; it does, however, give the patentee
effective control over the sale of that item. Indeed, a nding of contributory
infringement is normally the functional equivalent of holding that the dis-
puted article is within the monopoly granted to the patentee. Clearly, the
Justices were concerned that, by using copyright law, the movie studios could
actually get control of a new technology.
The fact that the Court expressed this concern through an analogy to patent
law was, at rst sight, fairly surprising. Courts do not normally look at copy-
rights in quite the same way as they look at patents. For one thing, patent
rights are stronger, though they are harder to obtain and last for a shorter period
of time. For another, while courts often express concern about the dangers of
a patent-driven monopoly over a particular technology, it is strange to see that
concern in the context of copyright law. An unnecessary monopoly over a
plow or a grain elevator may, as Jefferson pointed out, slow technological de-
velopment. But a monopoly over Snow White or Ode on a Grecian Urn? We
do not normally think of rights over expression (the realm of copyright) threat-
ening to sweep within their ambit an entire new technological invention (the
realm of patent).
But in the Sony case, the Supreme Court quite clearly saw that, in a world
where technological developments made copying easier, the idea of contribu-
tory infringement in copyright could be used to suppress or control entire
technologies that seemed, in the logic of 20/20 downside vision, to pose a
threat to the copyright holder. Indeed, in some sense, the logic behind the
Internet Threatcheaper copying requires greater controldemands this
result, though the Sony case antedates the World Wide Web by a considerable
time. If it is cheap copying itself that poses the threat, then the content owners
will increasingly move to gain control over the technologies of cheap copying,
using copyright as their stalking horse. That is why the Sony Court went be-
yond the simple ruling on fair use to explain the consequences of the movie
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companies claim. In a footnote (the place where judges often bury their most
trenchant asides) the Court was almost snide:
It seems extraordinary to suggest that the Copyright Act confers upon all copyright
owners collectively, much less the two respondents in this case, the exclusive right
to distribute VTRs [Video Tape Recorders] simply because they may be used to
infringe copyrights. That, however, is the logical implication of their claim. The re-
quest for an injunction below indicates that respondents seek, in effect, to declare
VTRs contraband. Their suggestion in this Court that a continuing royalty pur-
suant to a judicially created compulsory license would be an acceptable remedy
merely indicates that respondents, for their part, would be willing to license their
claimed monopoly interest in VTRs to Sony in return for a royalty.
23
The real heart of the Sony case is not that time-shifting of TV programs is
fair use. It is an altogether deeper principle with implications for all of the
holes in the intellectual property cheese. The Sony Court declared that because
video recorders were capable of substantial noninfringing uses, the manufac-
turers of those devices were not guilty of contributory infringement. If the
rights of copyright holders were absolute, if they had the authority to prohibit
any activity that appeared to pose a threat to their current business model,
then it is quite possible that video recorders would have been guilty of con-
tributory infringement. It is because we have, and need, multiple exceptions
and limitations on intellectual property that the Supreme Court was able to
resist the claim that copyright itself forbids technologies of cheaper copying.
To put it another way, without a robust set of exceptions and limitations on
copyright, the idea that cheaper copying requires greater control will inexorably
drive us toward the position that the technologies of cheaper reproduction must
be put under the governance of copyright holders.
Thus we have a corollary to the Jefferson Warningcall it the Sony Axiom:
cheaper copying makes the limitations on copyright more rather than less im-
portant. Without those limitations, copyright law will bloat and metastasize
into a claim of monopoly, or at least control, over the very architectures of our
communications technology. And that is exactly where the logic of the Internet
Threat is taking us today.
FROM NAPSTER TO GROKSTER
Seventeen years after the Sony decision, another court had to deal with a suit
by outraged copyright holders against the creators of a technology that
allowed individuals to copy material cheaply and easily. The suit was called
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A&M Records v. Napster.
24
Napster was a peer-to-peer le sharing system.
The les were not kept on some huge central server. Instead, there was a cen-
tral directorythink of a telephone directorywhich contained a constantly
updated list of the addresses of individual computers and the les they con-
tained. Anyone who had the software could query the central registry to nd
a les location and then establish a direct computer-to-computer connection
anywhere in the worldwith the person who had the le they desired. This
decentralized design meant the system was extremely robust, very fast, and
of nearly innite capacity. Using this technology, tens of millions of people
around the world were sharing music, an activity which record companies
quite understandably viewed as simple theft. In fact, it would be hard to think
of a situation that illustrated the Internet Threat better. The case ended up in
front of the U.S. Court of Appeals for the Ninth Circuit, which hears cases in
an area that includes California and thus has decided a lot of copyright cases
over the years.
There was an irony here. When the Supreme Court decided the Sony case,
it was on appeal from the Ninth Circuit Court of Appeals. Sony, with its rule
about reproductive technologies with substantial noninfringing uses, reversed
the appeals court decision. The Supreme Court was, in effect, telling the
Ninth Circuit that it was wrong, that its ruling would have required the ex-
traordinary (legal shorthand for stupid) conclusion that copyright law gave
copyright holders a veto on new technology. In the process, the Supreme
Court told the Ninth Circuit that it also did not understand the law of fair
use, or the freedom that should be given to individuals to make noncom-
mercial private copies. The identities of the judges had changed, but now,
seventeen years later, the same Circuit Court had another high-prole case on
exactly the same issues. In case any of the judges might have missed this irony,
it took David Boies, the lawyer for Napster, about ninety seconds to remind
them in his oral argument. This court, he said, adding as if in afterthought,
in the decision that the Supreme Court ultimately reversed in Sony. . . .
25
To
the laypeople in the audience it probably just seemed like another piece of legal
droning. But to the lawyers in the room the message was quite clear. The last
time you got a case about a major new technology of consumer reproduction,
you really screwed it up. Hope you can do better this time. The judges
mouths quirkednot entirely in pleasure. The point had been registered.
Think for a moment of the dilemma in which the court had been placed.
On the one hand, you had tens of millions of people sharing music les and
Napster was the service that allowed them to do it. If this was not contributory
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copyright infringement, what was? On the other hand, Napster seemed to t
very nicely under the rule announced in the Sony case.
The argument went like this. Like the VCR, the Napster service had sub-
stantial noninfringing uses. It allowed bands to expose their music to the world
through the New Artists program. It made it easy to share music which was
no longer under copyright. These uses clearly do not infringe copyright. There
were also the claims that it permitted space-shifting by consumers who already
owned the music or sampling of music by listeners as they decided whether
or not to buy. One could argue that space-shifting and sampling were fair use
(though in the end the court disagreed). But since we have two clear nonin-
fringing uses, the technology obviously does have substantial uses that do not
violate copyright. Thus, Napster cannot be liable as a contributory infringer,
just as Sony could not be liable for the Betamax. Supreme Court precedent
covers this case. The Ninth Circuit is bound by that precedent. All the judges
can do, goes the argument, is to apply the words of the rule laid down in Sony,
say that Napster wins, and move on to the next case. If Congress wants to make
services like Napster illegal, it is going to have to pass a new law. The bound-
aries of the Sony rule are clear and Napster ts within them. (Of course, the
last point is subject to argument, but the argument for Napster on this issue
was a good one. Not overwhelmingthere were more noninfringing uses in
the Sony case because the normal way consumers used the technology in ques-
tion was found to be a fair usebut certainly powerful.)
A more daring strategy was to suggest that all the copying done over Napster
was fair use, or at least presumptively fair. In Sony, the Supreme Court had said
that the law presumes that noncommercial private copyingsuch as taping a
show at home for future viewingis a fair use. This presumption shifts the
burden to the copyright holder to prove that the practice caused harm to
them. Copying on Napster was done by private individuals. No money was ex-
changed. Does this mean we must presume it was fair use and require the mu-
sic companies and songwriters to show clear evidence of market harm if they
want to convince us otherwise?
It sounds as though proving market harm would be pretty easy. How could
millions of people exchanging hundreds of millions of songs not be causing
harm? But it is more complicated. Remember the Jefferson Warning. We are
not talking about swiping shoes from a shoe store. There one merely has to
show the theft to prove the loss. By contrast, music les are copied without
being taken from their owner. The record companies would have to show
harm to their marketthe people downloading who do not purchase music
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because it is available for free. Those who download, but would not have pur-
chased, do not count. And we have to balance those who are deterred from
purchasing against those who purchase a whole CD because they are exposed
to new music through Napster. One very interesting empirical study on the
subject indicates that the result is a wash, with hardly any measurable effect
on sales; the overall drop in CD purchases results from larger macroeconomic
issues.
26
This study, however, has been subject to detailed methodological criti-
cism.
27
Another study shows a weak effect on sales, though rather woundingly
it seems to suggest that the result is economically efcientfewer people end
up with music they do not like.
28
Other studies, by contrast, support the record
company positionsuggesting that illicit le sharing does indeed undercut
sales of both CDs and authorized digital downloads.
29
Given the complexities
of the issue, the record companies did not want to engage in a war of dueling
empirical studies.
So, if Napsters users were not infringing copyright law in the rst place
at least until the record companies came up with convincing evidence of mar-
ket harmbecause their copying was noncommercial, then Napster could
hardly be guilty of contributory infringement, could it? There would be no
infringement at all!
You could see Mr. Boiess arguments as simple equations between the cases.
Noninfringing uses such as recording public domain lms and time-shifting
programs are equivalent to noninfringing uses such as the New Artists pro-
gram or sharing public domain music (and maybe space-shifting ones own
music?); or
Private noncommercial videotaping is equivalent to private noncommercial
le sharing. Both are presumptively fair uses.
Either way, Sony =Napster and Napster wins.
Napster did not win, of course, though when the judges handed down their
decision it was clear they had been paying attention to Mr. Boies, at least
enough to make them very wary of tampering with Sony. They claimed that
they were upholding that case, but that Napster could be liable anyway. How?
Because there was enough evidence here to show that the controllers of
Napster had actual knowledge that specic infringing material is available
using its system, that it could block access to the system by suppliers of the in-
fringing material, and that it failed to remove the material. There was indeed
evidence that Napster knew how its system was being usedan embarrassing
amount of it, including early memos saying that users will want anonymity
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because they are trading in pirated music. Then there were nasty circum-
stantial details, like the thousands of infringing songs on the hard drive of one
particular Napster employeethe compliance ofcer tasked with enforcing
the Digital Millennium Copyright Act! (The recording company lawyers waxed
wonderfully sarcastic about that.)
But despite the ludicrously dirty hands of Napster as a company, lawyers
could see that the appeals court was making a lot of new law as it struggled to
nd a way to uphold Sony while still making Napster liable. The courts ruling
sounded reasonable and clear, something that would only strike at bad actors
while paying heed to the Sony Axiom and the assurance of safety that the rule
in Sony had provided to technology developers for the previous twenty years.
But hard cases make bad law. In order to accomplish this piece of legal legerde-
main, the court had to alter or reinterpret the law in ways that are disturbing.
The rst thing the court did was to reject the argument that the sharing
was private and noncommercial. As to the idea that it is not private, fair
enough. Sharing ones music with fty-four million people does not sound
that private, even if it is done for private ends, in private spaces. What about
noncommercial? Embracing some earlier rulings on the subject, the court said
a use was commercial if you got for nothing something for which you
would otherwise have to pay. On the surface this sounds both clever and
reasonablea way to differentiate home taping from global le sharingbut
the argument quickly begins to unravel. True, the Betamax owners could get
TV shows for free just by watching at the regular time. But they could not
get a copy of the show for free at the moment they wanted to watch it. That
was why they taped. One could even argue that Napster users would have
access to most songs over the radio for free. But lawyers quibbling about which
way the rule cuts in this case is not the point. Instead, we need to focus on the
change in the denition of commercial, because it illustrates a wider shift.
Remember, a nding that a use is noncommercial makes it more likely
that a court will nd it to be legalto be a fair use. The old test focused
mainly on whether the motive for the copying was to make money. (A different
stage of the inquiry concerned whether there was harm to the copyright
holders market.) The Napster courts test concentrates on whether the person
consuming the copy got something for free. Instead of focusing on the fact
that the person making the copy is not making money out of itthink of a
professor making electronic copies of articles for his students to downloadit
focuses on the presumptively dirty hands of those who are getting something
for nothing. But lots of copyright law is about getting something for nothing.
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To put it differently, one central goal of copyright is to limit the monopoly
given to the copyright owner so that he or she cannot force citizens to pay for
every single type of use. The design of the law itself is supposed to facilitate
that. When getting something for free comes to equal commercial in the
analysis of fair use, things are dangerously out of balance. Think back to
Jeffersons analogy. If I light my candle at yours, am I getting re for free,
when otherwise I would have had to pay for matches? Does that make it a
commercial act?
Having dismissed the claim that this was noncommercial sharing, the court
then reinterpreted the Sony decision to allow liability when there was actual
knowledge of specic copyright violations, an ability to block access by in-
fringers, and a failure to do so. Neither side was entirely happy with this ruling,
but the record companies believedrightlythat it would allow them effec-
tively to shut Napster down. Yet the Napster ruling only postponed the issue.
The next set of le sharing services to be sued after Napster were even more
decentralized peer-to-peer systems; the Napster courts reinterpretation of Sony
would not be able to reach them.
The peer-to-peer le sharing service called Grokster is a relatively typical
example. Unlike Napster, Grokster had no central registry. The system was
entirely run by the individual peer computers. Because the system was de-
signed this way, the people who made and distributed the software had no
knowledge of specic infringing les. The users were doing the searching, in-
dexing, and storing, and Grokster had no ability to control their behavior. For
those reasons, a court of appeals held that Grokster was not liable. As in Sony,
the system had substantial noninfringing uses. Lots of interesting content
was traded on Grokster with the copyright holders consent. Other material
was in the public domain. Grokster made money by streaming advertisements
to the users of its software. The movie companies and record companies saw
this as a agrant, for-prot piracy ring. Groksters response was that like the
makers of the VCR, it was simply providing a technology. Its nancial interest
was in people using that technology, not in using it for illicit purposes
though, like the VCR manufacturer, it would prot either way. The court of
appeals agreed. True, the majority of the material traded on Grokster was il-
licitly copied, but the court felt that it could not give the recording or movie
companies control over a technology simply because it allowed for easier copy-
ing, even if most of that copying was illegal. As I tried to point out in the
section on the Sony Axiom, that line of thought leads to copyright holders
having a veto over technological development.
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It was at this point that the Supreme Court stepped in. In the case of MGM
v. Grokster,
30
the Supreme Court followed the line of the Napster court, but
went even further. The Court created a new type of contributory copyright
infringementwhile apparently denying it was doing so. Grokster and its
fellow services were liable because of three different kinds of evidence that
they had intended to induce copyright violation. First, they were trying to
satisfy a known demand for copyright infringement. This could be shown by
the way that they advertised themselves as alternatives to the notorious le-
sharing service, Napster. Second, the le sharing services did not try to develop
filtering software to identify and eliminate copyrighted contentthough this
alone would not have been enough to make them liable. Finally, their
advertising-supported system clearly proted by high-intensity use, which
they knew was driven in the most part by illicit copying. This too would not
have been enough by itself, the Court added, but had to be seen in the context
of the whole record of the case.
Let me be clear. I wept no tears for Napster, Grokster, and their ilk. I see
no high-minded principle vindicated by middle-class kids getting access to
music they do not want to pay for. It is difcult to take seriously the sancti-
monious preening of those who cast each junior downloader of corporate
rock as a Ch Guevara, ghting heroically to bring about a new creative
landscape in music. (It is almost as hard to take seriously the record industry
executives who moralistically denounce the downloading in the name of the
poor, suffering artists, when they preside over a system of contracts with
those same artists that makes feudal indenture look benign.) The le sharing
companies themselves were also pretty unappealing. Many of the services
were bloated with adware and spyware. True, some of their software engi-
neers started with a dewy-eyed belief that this was a revolutionary technology
that would break the record companies and usher in a new era of musical cre-
ativity. Whether one agrees or disagrees with them, it is hardfor me at
leastto doubt their sincerity. But even this quality did not last long. For
most of the people involved, the words stock options worked their normal,
morally debilitating magic. In internal company correspondence, attacks on
the hypocrisy of the music companies and defenses of a democratic commu-
nications structure imperceptibly gave way to discussions of customer base,
user experience, and saleable demographics. I care little that Napster and
Groksteras individual companieslost their specic legal battles. There
are few heroes in this story. But if we had to rely on heroes, nothing would
ever get done.
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I do care about the technology behind Napster and Groksterabout the
kind of decentralized system it represents. I also care about the principle I
identied as the Sony Axioma principle that goes far beyond music, peer-
to-peer systems, or the Internet as a whole. The Supreme Courts decision in
Grokster could have been much worse. But it still offers a modest threat both
to that technology and to that axiom.
What is so great about peer-to-peer systems? We talk about cheap speech
on the Internet, but bandwidth is actually expensive. If one is talking about
music or video les, and one wishes to speak to many people in a short period
of time, one vital way to have cheap speech is over peer-to-peer networks. If
many of your viewers or listeners are willing to become broadcasting stations
as they watch, you can cheaply reach a million people in a short period of time
with your video of abuse in Abu Ghraib or your parody of political leaders.
You do not need to rely on a broadcasting station, or even on the continued
existence of entities such as YouTube, which face their own legal worries. By
making your listeners your distributors, you can quickly reach the same num-
ber of ears that the payola-soaked radio waves allow the record companies to
reach.
One need not cheer Grokster. Much of what went on there was indeed illicit.
But there are two key things to understand about peer-to-peer networks. The
first is that they are hard to police. They have multiple nodes. That is why they
work. It means they will have both infringing and noninfringing uses, and the
noninfringing uses will be centrally connected to our deepest values of free
speech and cultural decentralization.
The second feature of peer-to-peer networks is even more basic. They are
networks and thus subject to the laws of network economics. In short, they
only work well if many people use them. A person who uses a peer-to-peer
system that no one else uses is in the position of the person who owns the only
fax machine in the world. Peer-to-peer networks provide cheap and unregula-
ble audiovisual or data-heavy speech to a mass audience. And if the past is
any guide, those networks will also carry large amounts of illicit material, just
as photocopying machines (and VCRs) are widely used to violate copyright.
The Grokster case makes it harder, but not impossible, to have successful,
widely used peer-to-peer systems that are not themselves illicit. If they are
widely used, there will be infringing content. If you try to police them and
lter them, you will know more about that infringing content and thus might
be liablethat was the point of the Napster case. If you do not, you will be
failing to take precautions. That was the point of the Grokster case. What is a
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poor peer-to-peer network to do? Apart from making sure that the last four
letters of your services name are not -ster, I am hard-pressed to advise you.
A decision does not need to make an activity illegal in order to impede it. It
only needs to make it uncertain. Already, for example, the freeand so far as
I could tell, entirely well-meaningservice bonpoo, which allowed you to
send large le attachments to many people at once, has shut down all of its
capabilities except photo transfer. That is simply one trivial instance of a
larger harm. Lots of new communications technologies will remain undevel-
oped because of the uncertainties left by this ruling.
My colleague Jennifer Jenkins gave one useful hyperbolic illustration,
drawing on earlier work by the Electronic Frontier Foundation: if one were
launching the iPod today, it is not clear how it would fare under Groksters
standard. Of course, there is no danger that the iPod will be challenged. It has
become respectable and the music companies ended up sanctioning it. But
how does it fare if we simply apply the tests laid down in the Grokster case?
There is Apples tainted advertising campaign, urging users to Rip, Mix,
and Burn. Does this not suggest complicity, or even intent? There is the fact
that the iPod does not restrict itself solely to proprietary formats protected by
digital rights management. It also allows uncontrolled MP3 les despite the
fact that this format is notoriously used to transfer les against the wishes of
the copyright owner. This, surely, is a failure to police. And nally, there is
the fact that it would cost about $10,000 to ll an iPod with songs down-
loaded from iTunes. Clearly Apple must be aware that much of the music that
lls iPods is illicitly copied. They are proting from that fact to drive demand
for the product, just as Grokster was proting from the attractions of illicit
trafc to drive people to use their service!
No one is going to sue Apple now, of course. In fact, established players in
the marketplace are probably fairly safe (and have better lawyers). But what if
a product as good as the iPod were being developed now by some upstart
company? What if it were no more and no less likely to be used for infringing
purposes? Would the business plan ever see the light of day? Or would it
be quietly smothered due to legal uncertainty? I have little sympathy for
Grokster the company, but the decision that doomed it is a bad piece of tech-
nology policy.
There is a second reason to dislike the Grokster decision. Despite some of
the angst-ridden announcements made when the decision was handed down,
the Supreme Court has not killed peer-to-peer systems. The concept is far too
well entrenched. But the decision will mean that there are fewer of them that
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are widely used, easy to operate, and made by responsible and reputable
people you can trust. This will probably lessen, but not end, illicit copying
online. But that effect comes with a priceit makes our communications
architecture a little bit more tightly controlled, reducing but not removing the
availability of methods of mass distribution that are entirely outside central-
ized public or private control. It is anotherrelatively smallstep toward an
Internet that is more like cable TV or iTunes, a one-way ow of approved
content. One might decide that such a price was well worth paying. But
where is the limiting principle or end point of the logic that led to it?
There is no provision in U.S. statutory copyright law that imposes liabil-
ity for contributory or vicarious infringement. None. The patent statute has
such a provision; not the Copyright Act. The courts have simply made the
scheme up themselves. Then they made up limitationssuch as Sonyin
order to rein it in. In Grokster, the Supreme Court went further. It made up a
new type of inducement liability. Fine. As I have tried to indicate here, the
decision is not as dreadful as it is reputed to be. But so long as there is any un-
regulated space in our communications network, some portion of it will have
illicitly copied content on it. The more the system is free of central control,
the more it is open to use by any citizen, the cheaper it getsall very desirable
characteristicsthe more illicit content there will be. That is the premise of
the Internet Threatthe belief that control must rise as copying costs fall. I
have tried here to suggest an alternative interpretation, the Sony Axiom: with-
out a strong internal set of limitations over copyright, cheaper copying and
the logic of the Internet Threat will always drive us toward giving control over
our communications architecture to the content industries.
There was one particularly striking moment in the Napster oral argument.
The lawyer for the recording companies was arguing that Napster was illegal.
The judges interrupted, as they often do, and there was a back-and-forth de-
bate about the likely reach of any ruling that would shut down Napster. I am
not trying to say the Internet is illegal, said the lawyer. There was a pause as
everyone weighed those words carefully.
My response would be Really? Why not? The logic of the Internet Threat
leads to the position that a network is either controlled or illegal. The better
and cheaper the network, the tighter the control needed. The Internet itself
could have been designed differently. There could have been more centralized
control, ltering of content, a design based on one-way transmission, closed
protocols that allow users only a limited number of options. Indeed there
were such systemsthe national French Minitel system is an example. The
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Internet represents the opposite set of choicesfreedom from centralized
control, absence of intervention. In a famous article, Saltzer, Reed, and Clark
provided the argument that an end-to-end network that is dumb and leaves
processing to the endsthe smart terminals at either end of the wireswill
be stable and robust.
31
But it will also be remarkably uncontrolled and it will
lower global copying costs close to zero for digital content. It is that principle
that has made it successful. To put it tersely: the logic of the Internet Threat
runs in exactly the opposite direction to the Internet itself. The logic of con-
trol is not the logic of the Net.
Here is one last thought experiment. Apply the same test I suggested for the
iPod to the Internet itself.
32
Imagine you knew nothing of the Net. (Those of
you who are over twenty-ve may actually be able to remember when you
knew nothing of the Net.) Imagine that you are sitting in a room somewhere
discussingperhaps with a group of government bureaucrats or some policy
analysts from the Commerce Departmentwhether to develop this particular
network. The scientists are enthusiastic. They talk of robustness and dumb
networks with smart terminals. They talk of TCP/IP and HTML and decen-
tralized systems that run on open protocols, so that anyone can connect to
this network and use it any way they want to. You, of course, know nothing
about the truly astounding outburst of creativity and communication that
would actually ower on such a system, that would ower precisely because it
is so open and no one country or company controls it or the protocols that
run it. You do not know that millions of people worldwide will assemble the
greatest factual reference work the world has ever seen on this networkoften
providing their information for free out of some bizarre love of sharing. You
do not know about Amazon.com or Hotornot.com or the newspapers of
the world online, or search engines, automatic page translation, plug-ins, or
browsers. You cannot imagine free or open-source software being assembled
by thousands of programmers worldwide. E-mail is only a dimly understood
phenomenon to you. Teenagers in your world have never heard of instant
messaginga nostalgic thought.
As the scientists talk, it becomes clear that they are describing a system
without centralized direction or policing. Imagine that your decision is
framed by the logic of control I have described in this chapter, by the fears
that the content industry has had for at least the last thirty yearsby the logic
of the suit they brought in Sony. Imagine, in other words, that we make the
up-or-down decision to develop the Internet based on the values and fears
that our copyright policy now exhibits, and that the content industries have
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exhibited for thirty years. There is no way, no way at all, that a network like it
would ever be developed. It would be strangled at birth. You would be told by
the lawyers and policy wonks that it would be a haven for piracy and illegality.
(And it would be, of coursethough it would also be much, much more.)
You would be told that the system needed to be designed to be safe for com-
merce or it would never attract investment, that it would need to be con-
trolled and centralized for it to be reliable, that it would need to be monitored
to stop it being a hotbed of crime. With the copyright lawyers in the room,
you would end up designing something that looked like cable TV or Minitel.
The Internet would never get off the ground.
The Internet is safe now, of course, because it developed so fast that it was
a reality before people had time to be afraid of it. But it should give us pause
that if we had our current guiding set of policy goals in place, our assumption
that cheaper copying means we need greater regulation, we would never have
allowed it to ourish. As Jessica Litman points out, we are increasingly making
our decisions about technology and communications policy inside copyright
law. We are doing so according to the logic of control that I have sketched out
in this chapter. But the logic of control is a partial logic. It blinds us to certain
possibilities, ones that have huge and proven potentiallook at the Internet.
The law has not been entirely one-sided, however. The Sony case drew a
line in the sand which promised to halt the inevitable drift toward greater and
greater control over communications technology by content owners. It turned
out the heavens did not fall. Indeed, the content companies thrived. Perhaps
that line was drawn in the wrong place; reasonable people can disagree about
that. But Grokster smudges the line without drawing a clear new one. If that
new line is drawn according to the logic of control, what technologies will we
never see? Could they be technologies that would transform our lives as
unimaginably as the Internet has since 1995?
I have described the story linethe cluster of metaphors and images and
concernsthat pervades our copyright policy. I labeled it the Internet Threat.
In the next chapter, I discuss an alternative story line, a different way of under-
standing our current policies. The subject of that story line is the best-known
example of contemporary attempts to control the digital world, the Digital
Millennium Copyright Act or DMCA.
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5
The Farmers Tale:
An Allegory
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Imagine that a bustling group of colonists has just moved into a new
area, a huge, unexplored plain. (Again, assume the native inhabitants
have conveniently disappeared.) Some of the colonists want to farm
just as they always did in the old country. Good fences make good
neighbors is their motto. Others, inspired by the wide-open spaces
around them, declare that this new land needs new ways. They want
to let their cattle roam as they will; their slogan is Protect the open
range. In practice, the eventual result is a mixture of the two regimes.
Fields under cultivation can be walled off but there is a right of passage
through the farmers lands for all who want it, so long as no damage
is done. This means travelers do not need to make costly and inef-
cient detours around each farm. In the long run, these public roads
actually increase the value of the private property through which
they pass. They also let the ranchers move their cattle around from
one area of pasture to another. The ranchers become strong propo-
nents of public, open highways (though some people muse darkly
that they do very well out of that rule). Still, most people want open
highways; the system seems to work pretty well, in fact.
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Two new technologies are introduced. First, the automobile is developed.
Now thieves can drive through the farmers elds, stop quickly to grab some
corn or a lettuce, and be back on the highway before they can be caught. Of
course, the farmers costs have also fallen dramatically; now they have tractors
to work their elds and trucks to take their products to distant markets. The
farmers do not dwell on the benets of the new technology, however. Under-
standably, they focus more on the prots they could reap if they could get all
the advantages of the technology and none of its costs. They demand new
legal protections aimed at producing that result. Whats good for agriculture
is good for the nation, they say. But now comes the second technological
shockthe development of barbed wire. The cost of erecting impassable bar-
riers falls dramatically. The farmers begin to see the possibility of enclosing all
of their land, roads and elds alike. This will help them protect their crops
from pilfering, but it will also allow them to charge people for opening the
gates in their fenceseven the gates on public roads. That is a nice extra rev-
enue stream which will, the farmers say, help encourage agriculture. After
all, more fences mean more money for farmers, and more money for farmers
means they can invest in new methods of farming, which will mean everyone
is better off, right?
What is to be done? Assume that each side presents its case to the legisla-
ture. There are three obvious possibilities:
First, the legislature can simply tell each side to work it out amongst them-
selves. The law will continue to forbid trespass, but we are neither going to
make it a crime to put up a barbed wire fence if it blocks legitimate public
rights of way nor to make it a crime to cut a barbed wire fence, unless the
fence cutter is also a trespasser. The farmers can attempt to enclose land by
putting barbed wire around it. Ranchers and drivers can legally cut those
fences when they are blocking public rights of way. Trespass remains trespass,
nothing more.
Second, the legislature could heed the ranchers fears that barbed wire will
permit the farmers not only to protect their own land, but to rob the public of
its existing rights of way, turning open highways into toll roads. (The ranchers,
of course, are more concerned with the rights of cattle than people, but most
drivers agree with them.) As a result, the state could forbid the erection of
a barbed wire fence where it might block a public right of wayclassing it as
a kind of theft, perhaps.
Third, the legislature could take the farmers side. Theorizing that this new
automobile technology presents a terrible threat to agriculture, because of
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rampant crop piracy, the state could go beyond the existing law of trespass
and make it a crime to cut barbed wire fences wherever you nd them (even if
the fences are enclosing public lands as well as private, or blocking public
roads). To back up its command, it could get into the technology regulation
businessmaking the manufacture or possession of wire cutters illegal.
The state picks option three. Wire cutting becomes a crime, wire cutters are
classed with lock picks and other criminals tools, and the people who make
wire cutters are told their business is illegal. A storm of protest arises in the rural
driving community. The wire cutter manufacturers claim that their products
have lots of legitimate uses. All to no avail: the farmers press on. They have
two new demands. Cars should be tted with mandatory radio beacons and
highways put under constant state surveillance in order to deter crop theft. In
addition, car trunks should be redesigned so they can hold lessjust in case
the owner plans to load them up with purloined produce. Civil libertarians
unite with car manufacturers to attack the plan. The farmers declare that the
car manufacturers are only interested in making money from potential thieves
and that the civil libertarians are Nervous Nellies: no one has anything to fear
except the criminals. Whats good for agriculture is good for the nation,
they announce again. As the barbed wire gates swing shut across the highways
of the region, the legislature heads back into session.
BETWEEN PARANOIA
AND REALITY: THE DMCA
I have argued that confusing intellectual property with physical property is
dangerous. I stand by that argument. Yet analogies to physical property are
powerful. It is inevitable that we attempt to explain new phenomena by com-
paring them to material with which we are more familiar. While the content
companies tales of theft and piracy are the most prevalent, they are by no
means the only such analogy one can make. In this chapter I try to prove that
point.
The Farmers Tale is my allegorical attempt to explain the struggle over the
single most controversial piece of intellectual property legislation in recent
years, the Digital Millennium Copyright Act, or DMCA.
1
The DMCA did
many things, but for our purposes its crucial provisions are those forbidding
the circumvention of copyright protection systems, the technological mea-
sures that copyright holders can use to deny access to their works or control
our behavior once we get access. These measures include encryption, controls
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on how many times a le can be copied, password protection, and so on.
Copyright protection systems are, in other words, the digital equivalent of
barbed wire, used to add an additional layer of physical protection to the
property owners existing legal protection. But, unlike barbed wire, they can
also control what we do once we get access to the property.
The rules that forbid circumvention of these systems are logically, if not
elegantly, referred to as the anticircumvention provisions. They are to be found
in Section 1201 of the Copyright Act, an ungainly and lumpily written por-
tion of the law that was inserted in 1998 as part of the complex set of amend-
ments collectively referred to as the DMCA. I will explain the signicance of
these rules in a moment. My hope is that the analogy to the Farmers Tale will
make them a little easier to understandat least for those of you for whom
talk of digital rights management, anticircumvention provisions, and network
effects is not second nature.
Notice the differences between this allegory and the Internet Threat story
line I described in the last chapter. There are two sets of bad guys in the Farm-
ers Tale. The greedy thieves (who are still thieves in this storynot heroes)
and the greedy farmers who use a genuine if indenite threat posed by a
new technology to mask a power grab. The Internet Threat is the story of an
industry devastated by piracy, in desperate need of help from the state to pro-
tect its legitimate property interests. By contrast, the Farmers Tale is the story
of a self-interested attempt not only to protect property but to cut off recog-
nized rights of public access in a way that will actually make the whole society
worse off. The legitimate role of the state in protecting private property has
been stretched into an attempt to regulate technology so as to pick winners in
the marketplace, enriching the farmers at the expense of consumers and other
businesses. In the long run this will not be good for business as a whole. A
patchwork of private toll roads is an economic nightmare.
That is not the most worrying part of the story: the farmers proposals are
moving in the direction of regulating still more technologythe mandatory
radio beacons and constantly monitored roads conjure up a police stateand
all to protect a bunch of hysterical vegetable growers whose political clout far
outweighs their actual economic importance.
Both the Internet Threat and the Farmers Tale are, of course, ways to un-
derstand what is currently going on in the intellectual property wars. In the
digital realm, the part of the farmers is played by the content companies, the
recording industry associations, the movie and software trade groups. Pointing
to the threat of digital piracy, they demanded and received extra legal protection
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for their copyrighted content. Unlike earlier expansionslonger copyright
terms, more stringent penalties, the shrinking of exceptions and limitations,
expansions in copyrightable subject matterthis was not a protection of the
work itself; it was a protection of the digital fences wrapped around it, and a
regulation of the technology that might threaten those fences.
What is the signicance of this? The digital revolution makes it easier to
copy copyrighted content. It also makes it easier to protect that content, and
to do so in a more granular and precisely calibrated way. Imagine being able to
sell a paperback book that could only be read by the original purchaser or a
song that could only be listened to by a particular person in a particular room.
Digital rights management technology makes it a lot easier to do these things.
Suddenly the copyright owners have considerable physical control over their
songs, e-books, and software, even after they have sold them. It is as if the
recording industry or the publishers had a representative in your living room.
They can use that control not merely to prevent illicit copying but to control
and limit usage in ways that go far beyond their exclusive rights under copy-
right. All of this happens without the law or the state doing anything. Like
barbed wire, this is a technological protection measure.
Like the farmers, the content companies were not content with their
barbed wire alone. They wanted legally protected barbed wire in addition to
their existing legal rights under copyright. Under the Digital Millennium
Copyright Act, it became illegal to circumvent a technical protection measure
such as encryptionthe digital barbed wire behind which content companies
secrete their workeven if what you did with the content when you got past
the barbed wire was a fair use; excerpting a fragment of a lm for a school pre-
sentation, for example, or making a copy of an encrypted audio le for per-
sonal use in another device. In other words, by using digital barbed wire, the
content companies could prevent citizens from making the fair uses the
copyright law allowed. This undermines some of the limitations on their ex-
clusive rights that the Copyright Act explicitly carves out in Section 107, and
thus shifts the balance of power that the Copyright Act establishes. Cutting
barbed wire became a civil wrong, and perhaps a crime, even if the wire
blocked a public road. Under most circumstances, making wire cutters was
also now against the law.
The rancherswhose digital equivalents are communications companies
and hardware manufacturerschafed under these new rules. The most pow-
erful groups managed to get special dispensations. Internet service providers,
for example, got a qualied immunity from copyright infringement that
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occurs over their networks. But ordinary citizens, librarians, and civil libertar-
ians also complained, and they were not as well represented in the legislature.
It is true that the new rules may help to prevent illicit copying, but they also
strike a blow against the exercise of fair use rightsrights that are important
both to free speech and competition. Even if the content companies were
absolutely right about the threats from digital piracy, this consequence should
make us pause. But critics of the DMCA say that there is little evidence that
the content companies are right. They quote some of the empirical studies I
mentioned in the last chapter, particularly the ones that show no net negative
effect from unauthorized music downloading on CD sales. They claimand
they are on strong ground herethat even if there are some losses from the
new copying technologies, there are also benets. Like the farmers, the critics
would argue, the content companies take the benets of the new technology
for granted, but wish the law to step in to ameliorate the harms it also creates.
And like the farmers, they are not yet satised. Their new proposals go even
furtherscarily further. Thus runs the critics argument.
The critics of the DMCA conjure up a world in which it will be illegal to
lend each other books or songs, where it will be impossible for us to copy even
small fragments of digital work for criticism or parody, where encryption
research will be severely chilled, and where large quantities of the public
domain will be enclosed together with the copyrighted content that the
DMCA is supposed to protect. (The Electronic Frontier Foundations Unin-
tended Consequences studies give concrete examples.)
2
They think the
DMCA undoes the balance at the heart of copyright law, that it can be used
to entrench existing businesses and their business methods, that it threatens
speech, competition, privacy, and innovation itself. In short, they think the
DMCA is the worst intellectual property law Congress has ever passed and
view the adoption of similar laws around the world with a reaction little short
of horror.
Those who supported the DMCA disagree, of course, and do so honestly.
They see rampant piracy as a reality and the threat to fair use as some kind
of academic hypothetical rarely encountered in reality. Whats more, many of
them do not think fair use is that important economically or culturally. If
markets work well, users could be made to pay for the rights that fair use
givesbut only if they wanted them. One could buy expensive digital books
which one was allowed to share, quote, or copy for classroom use, and cheaper
ones which one had to keep to oneself. Remember that for many of the people
who supported the DMCA, fair use is something of a loophole; certainly
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not an afrmative right of the public or a reserved limitation on the original
property grant from the state. (Remember the Sony Axiom from Chapter 4?)
They nd the analogy of fair use to a public road ludicrous. This lm, or book,
or song, is mine; anything you do with it, or to it, you do at my sufferance.
(Remember the Jefferson Warning from Chapter 2?)
How has the DMCA worked in reality? Which groups attitudes were vin-
dicated? Two case studies may help us to answer these question.
Infectious Speech: The DMCA
and Freedom of Expression
Jon Johansen, a 16-year-old Norwegian, was the unwitting catalyst for one of
the most important cases interpreting the DMCA. He and two anonymous
helpers wrote a program called DeCSS. Depending on whom you listen to,
DeCSS is described either as a way of allowing people who use Linux or other
open source operating systems to play DVDs on their computers, or as a tool
for piracy that threatened the entire movie industry and violated the DMCA.
A little background is in order. When you play a commercial DVD, your
actions are partly controlled by a simple encryption scheme called CSS, or the
Content Scramble System. The DVD Copy Control Association licenses the
keys to this encryption system to the manufacturers of DVD players. Without
a key, most DVDs could not be played. The manufacturer then embeds this
key in its hardware design in such a way that it is easy for your player to de-
code and play the movie but hard, at least for a person of average technical
competence, to copy the decoded stream.
Because the DVD Copy Control Association will only license keys to man-
ufacturers whose DVD players conform exactly to their specications, the CSS
scheme can also be used to control viewers in other ways. For example, DVD
players are required to have one of six region codes, depending on where in
the world they are sold. Region 1 is the United States and Canada. Region 2 is
Japan, Europe, South Africa, the Middle East, andbizarrelyGreenland.
Region 3 is South Korea, Taiwan, and Hong Kong; and so on. The CSS scheme
can be used to restrict a movie to a player with the appropriate region code. If
you try to play a movie coded for region 6 (China) in a DVD player from re-
gion 1, it will not play. This allows lmmakers to distribute different versions
of lms to different regions at different times based on sequential release in
cinemas, or simply to distribute DVDs with different prices to different re-
gions without worrying about whether the cheaper DVDs will leak into the
more lucrative markets. CSS and the hardware scheme that unlocks it can also
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be used to prevent you from fast-forwarding through the commercials at the
beginning of the movie if the copyright owner does not want you to, or from
skipping the FBI notice. The machine will not do it. In fact, it is deliberately
built so that it cannot do it.
What we have here is a digital fence that is partly used to prevent copying.
Movie studios are understandably worried about the worldwide circulation of
perfect digital copies of their movies. CSS was supposed to help to prevent
that, or at least make it much harder. But because almost all movies are en-
crypted with CSS and access to the keys comes with conditions, CSS also allows
a more ne-grained control over consumers. Manufacturers are not allowed to
make players which can view movies from all region codes or skip portions of
the DVD that the owners do not want you to skip. The licensing body puts it
this way on its Web site: Q. Under the terms of the CSS licensing agreement,
is it legal for a licensed manufacturer to produce and sell a product which allows
a user to disable any CSS protections? A. No. Such products are not allowed
under the terms of the CSS license. They are illegal.
3
A technology intro-
duced to protect intellectual property rights allows control in ways that those
rights alone do not.
Before the DMCA, the movie companies could have done exactly this.
They could have wrapped their movies in a digital fence. The consumer elec-
tronics companies that wanted to could license a key and be allowed to use a
trademark that indicated that they were approved by the DVD Copy Control
Association. But what if a manufacturer of DVD players felt that American
consumers wanted to be able to play their Japanese anime movies without
buying another DVD player to do so? Or what if they thought people were
antsy and did not want to watch the FBI notice before every lm? The manu-
facturer could have tried to reverse engineer the CSS system, to gure out
how it worked. If they succeeded, they could make a player that was free of
the restrictions that the CSS licensing authority imposed.
Of course there were some legal limitations even before the DMCA. Our
hypothetical manufacturer could not break into the safe where the CSS code
was being held or bribe an employee to provide it. (That would be a trespass
or a violation of trade secret law.) It could not violate copyright laws over the
various types of software that controlled DVD players. It could not use the
trademarks of any of the entities involved, including any seal of approval
granted by the DVD Copy Control Association. But it couldat least in the
United Statestry to reverse engineer the product so as to make a competing
product with features that the customers liked more. It would be no more
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illegal than a company making a cheaper generic razor cartridge that ts my
expensive Gillette Mach 3 razor, a generic printer cartridge to replace the expen-
sive one in my Lexmark printer, or, for that matter, a generic remote control
for my garage door opener. In each case, of course, the original manufacturer
would prefer that I use their products rather than the unlicensed ones. They
can design their product to make it hard to use a generic replacement or even
tell me that my warranty will be void if I use one. But they cannot say that the
unlicensed product is illegal. We are back in option one of the Farmers Tale,
before the legislature acted. The farmers can put up their wire, and even use it
to block passage that would be otherwise legal, but it is not a crime to gure
out a way through the fence unless the fence cutter is also a trespasser. The
DMCA, however, might have changed all of that.
Let us return to Mr. Johansen, the 16-year-old Norwegian. He and his two
anonymous collaborators claimed that they were affected by another limita-
tion imposed by the CSS licensing body. At that time, there was no way to
play DVDs on a computer running Linux, or any other free or open source
operating system. (I will talk more about free and open source software later.)
Lets say you buy a laptop. A Sony Vaio running Windows, for example. It has
a slot in the side for DVDs to slide in and software that comes along with it
which allows the DVD reader to decode and play the disk. The people who
wrote the software have been licensed by the DVD Copy Control Association
and provided with a CSS key. But at the time Mr. Johansen set out to create
DeCSS, the licensing body had not licensed keys to any free or open source
software developers. Say Mr. Johansen buys the Sony Vaio, but with the Linux
operating system on it instead of Windows. The computer is the same. The
little slot is still there. Writing an open source program to control the DVD
player is trivial. But without the CSS key, there is no way for the player to
decode and play the movie. (The licensing authority later did license an open
source player, perhaps because they realized its unavailability gave Mr. Johansen
a strong defense, perhaps because they feared an antitrust suit, or perhaps be-
cause they just got around to it.)
Mr. Johansen and his supporters claimed strenuously that DeCSS was not
in fact an aid to illicit copying. In fact, they argued that CSS was not really de-
signed to protect DVDs against illicit copying. Commercial DVD pirates
do not need to crack the CSS encryption. Quite the contrary: they produce
exact copies of the DVD, CSS encryption and all, and the buyers player duti-
fully decodes it and plays it. Mr. Johansen claimed that his goals were very dif-
ferent from those of the pirates.
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The motivation was being able to play DVDs the way we want to. I dont like being
forced to use a specic operating system or a specic player to watch movies (or lis-
ten to music). Nor do I like being forced to watch commercials. When your DVD
player tells you This operation is not allowed when you try to skip commercials, it
becomes pretty clear that DRM really stands for Digital Restrictions Management.
4
In Mr. Johansens view, CSS was simply an attempt to control consumers,
an attempt which should be a valid target for legal reverse engineering. He has
a point. There were indeed other ways to copy DVDs which did not require
DeCSS and which gave you les of more manageable size. CSS was indeed
more than a simple anticopying device. The entire schemethe keys, the
licenses, the hardware requirementswas designed to give movie studios
greater control over their movies in a number of ways, some of them unrelated
to copying. On the other hand, he overstated the point. One function of CSS
was indeed to make it harder for the average person playing a DVD on a com-
puter to copy the le from the DVD to her hard disk and give it to a friend.
It is very easy for the average 14-year-old to take a commercial music CD,
change the songs into smaller les in the MP3 format, and share them with a
friend. It is not as easy to do the same thing to a DVDnot impossible, just
harderand CSS is one of the reasons why.
Mr. Johansens program, DeCSS, was quickly made available worldwide.
Mirror sites provided copies of the program and lists of such locations were
easy to nd using standard search tools. One such list was provided by the
online site run by a magazine called 2600: The Hacker Quarterly. The maga-
zine features everything from pictures of pay phones from around the world
to tips on how to hack into computer or telephone systems. Its publisher is
one Eric Corley, who goes by the name Emmanuel Goldsteinthe resistance
leader in George Orwells 1984.
In 1999, Universal City Studios brought suit against a number of individ-
uals for distributing DeCSS. The case was called Universal City Studios v.
Reimerdes et al. Corley was among the defendants. The suit prominently in-
cluded a claim that the defendants were violating the DMCA. It was in this
case that the DMCA received its rst major legal challenge.
Depending on the characterization of the facts, the case seems to be about
very different things. It could seem a classic First Amendment ght. (Plucky
magazine publisher told copyright law forbids him from linking to other sites
on the Internet!) Or it could seem the very essence of illegal activity. (Shad-
owy site which unashamedly caters to computer hackers tries to spread access
to the burglars tools of cyberspace!)
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Of course, most lawsuits involve conicts over facts. Much of what lawyers
do is put the same facts into different conceptual boxes. But here, merely de-
scribing what Corley does, what hackers are, or what 2600 magazine is all
about involves one in a profound culture clash. The best way to capture the
clash may be to quote from an early entry about Corley in Wikipedia, the re-
markable online encyclopedia.
The encyclopedia rst quotes the description of 2600 magazine from Judge
Lewis A. Kaplan, the federal district court judge who decided the Reimerdes
case.
2600: The Hacker Quarterly has included articles on such topics as how to steal
an Internet domain name, how to write more secure ASP code, access other peo-
ples e-mail, secure your Linux box, intercept cellular phone calls, how to put Linux
on an Xbox, how to remove spyware, and break into the computer systems at
Costco stores and Federal Express. One issue contains a guide to the federal crimi-
nal justice system for readers charged with computer hacking. In addition, 2600
operates a web site located at 2600.com (http://www.2600.com), which is managed
primarily by Mr. Corley and has been in existence since 1995.
The Wikipedia article then continues as follows:
While the judges tone is clearly disapproving, others would point out that book-
stores, movies and television channels are lled with material on how to commit
murder . . . and that without the efforts of the hacker community, however ill-
intentioned, computer insecurity would be even more of a problem than it
already is.
5
In fact, Judge Kaplan was not entirely disapproving. He mentions articles in
2600 that cover laudable or innocuous tasks, as well as others about tasks that
most readers would nd objectionable and rightly think to be illegal. But the
anonymous volunteer who wrote this version of Corleys Wikipedia entry
clearly saw the issue differently. Wikipedia does not portray the hacker com-
munity as universally benevolent (however ill-intentioned), but that com-
munity is also seen as providing a useful service rather than merely a set of
how-to guides for would-be digital burglars.
To most people, pointing out vulnerabilities in computer security systems
seemed, at least in 1999, like telling the world that your neighbor has forgot-
ten to lock his door and all his possessions are there for the taking. But to the
online community, it is by no means so clear. From the perspective of those
who are knowledgeable in the eld, there is a moral continuum. There is
clearly legitimate computer security and cryptography research, which includes
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attempts to break into computer systems to test their defensesthat is how
one nds out they are secure, after all. Then there are hackers. This term
could be used to describe those who merely like to program. Richard Stallman,
for example, the originator of the free software movement, describes himself
thus. But the term could also be used for those who are interested in security or
interoperabilitymaking two systems work together. That was Mr. Johansens
declared goal, after all. But some self-described hackers go further. They believe
that exploring and disclosing the weaknesses of supposedly secure systems is
intellectually fullling, practically important, and protected by the First
Amendment. They disclaim both moral and legal responsibility for the conse-
quences of their disclosures. (Or at least the negative consequences; they fre-
quently take credit for the positive consequences, such as improved security.)
Finally, there are crackers, whose interest in gaining entry to computer sys-
tems is malicious or for nancial gain. At what point on this continuum does
the activity become legally, or morally, unacceptable? As the Reimerdes trial
went on, it became clear that the answer the DMCA gave might not be the
same as the one given even by undeniably legitimate computer scientists.
A large number of legal arguments were involved in the Reimerdes case, but
for our purposes here the most important ones dealt with the relationship be-
tween copyright and the First Amendment. What is that relationship?
In one obvious sense copyright actually aids free speech. By providing an
incentive to create works, copyright add[s] the fuel of interest to the re of
genius,
6
and thus helps to create the system of decentralized creative production
and distribution I described in Chapter 1. But copyright also restrains speech.
At its base, it allows an individual to call upon the state to prevent someone
from speaking or expressing themselves in a particular way. This may involve a
simple refusal to let the speaker use some text, picture, verse, or story in their
message, or it may involve a refusal to let them transform it in some way.
Neither copyright law nor the American Constitution is blind to these
dangers. Copyright has a number of built-in safeguards. The most important
of these is that copyright only covers original expressionboth the ideas
and facts in this book can be used by anyone without my permission. Thus,
goes the theory, the speakers freedom of expression is never truly restrained.
The only thing I am barred from is using your words, your exact plot, your
photograph, your musicnot your facts, your ideas, your genre, the events
you describe.
That is not always enough, of course. Sometimes the problem is that the
speaker cannot paraphrase around the restraints posed by copyright. He needs
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to use the particular text or image in question to convey his message. The
ideas, the facts, or a mere paraphrase of the expression would not be enough.
In cases like that copyrights answer is fair use. A politician could not prevent
journalists who disagree with him from quoting his autobiography in dis-
cussing his life. If an African-American author wishes to tell the story of Gone
With the Wind from the slaves perspective, she may do so in the face of the
copyright holders attempts to stop her. Even fair use, though, may not cover
every concern about free expression. Before World War II, Alan Cranston
later a U.S. Senatorwanted to convince American readers that the version
of Hitlers Mein Kampf published in the United States was distorted. He be-
lieved it to be slanted toward American sensibilities, downplaying both anti-
Semitism and German expansionism. His solution? To publish his own English
translation, taken direct and uncut from the German edition. He wanted to
prove, with Hitlers own words, that the United States had a dangerously
distorted version of the German leader. But this is the kind of thing copy-
right law forbids and it is not clear that fair use allows. (In the end he did it
anyway.)
7
For the moment though, it is enough to realize that copyright law is not
immune from the First Amendment or from free speech concerns more gen-
erally. If we do not notice that most of the time, it is because the internal
limitations of copyrightfair use, the idea-expression distinction, and so on
generally take care of the First Amendment issue, not because the issue was
never there.
So what First Amendment issues did the DMCA present? Most obviously,
the DMCA gave a new right to copyright owners. By using a few simple tech-
nological measures, they could distribute a work in a particular format and
yet, because of their new intellectual property right, they could make illegal
an otherwise lawful process of gaining access for the purposes of making fair
use. Of course, the First Amendment allows me to make fair use factually im-
possible. I can do that without raising any constitutional issues by hiding my
manuscript and never letting you see it or just by using unbreakable encryption
on my digital products. It allows me to use existing conventional property
rights to make fair use illegal. If I own the only copy of the book and it is inside
my house, it would be trespass for you to enter. No First Amendment prob-
lem there. But in passing the DMCA, Congress had created a new intellectual
property right inside copyright law itself, a law aimed directly at expression,
that made it illegal to get access for the purpose of making fair use even when
you legally bought the physical book, or the physical DVD, and now wish to quote
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it or parody it. Even that is not the problem. It is that Congress cannot grant
the exclusive rights of copyright without simultaneously accompanying them
by the limitations of fair use.
8
Regardless of what physical constraints and tan-
gible property rights might do to limit my ability to make fair uses, Congress
had now, by law, allowed a copyright owner to distribute a particular work
with the exclusive rights but without some of those limitations.
Imagine that Congress had passed the following law instead of the DMCA:
Any copyright owner can make it illegal to make a fair use of a copyrighted
work by putting a red dot on their books, records, and lms before selling
them. It shall be a crime to circumvent the red dot even if, but for the dot, the
use would have been fair. That would be clearly unconstitutional. It gives
copyright owners a new intellectual property right to turn off fair use in
copyrighted works distributed to the mass market. Is the DMCA not the
same thing?
This was the issue in Reimerdes. True, if I cut through the digital fence on a
DVD in order to excerpt a small portion in a critical documentary, I would
not be violating your copyright, but I would be violating the anticircumven-
tion provisions. And DeCSS seemed to be a tool for doing what the DMCA
forbids. By providing links to it, Mr. Corley and 2600 were trafcking in a
technology that allows others to circumvent a technological protection measure.
DeCSS could, of course, be used for purposes that did not violate copyright
to make the DVD play on a computer running Linux, for example. It enabled
various noninfringing fair uses. It could also be used to aid illicit copying. But
the alleged violation of the DMCA had nothing to do with that. The alleged
violation of the DMCA was making the digital wire cutters available in the
rst place. So one First Amendment problem with the DMCA can be stated
quite simply. It appeared to make it illegal to exercise at least some of the limita-
tions and exceptions copyright law needs in order to pass First Amendment scrutiny.
Or did it just make it very, very difcult to exercise those rights legally? I
could, after all, make a videotape of the DVD playing on my television, and
use that grainy, blurry image in my documentary criticizing the lmmaker.
The DMCA would not be violated, though my movie might be painful to
watch.
The other possible First Amendment problem with the DMCA was that
in regulating programs such as DeCSS, the DMCA was actually regulating
speech. The rst challenge to the DMCA was that, by making tools like
DeCSS illegal, the DMCA took away a constitutionally necessary escape
hatch to copyright, thus making copyright law as a whole violate the First
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Amendments guarantee of freedom of speech. The second challenge was dif-
ferent. The problem was that the program itself was speech and the DMCA
was regulating it illicitly.
The reasoning went like this. A computer program is a form of expression
and communication. The source code can even be read by human beings. True,
it is an abstract form of communicationlike musical notation and mathe-
matical algorithms. But those are clearly protected by the First Amendment.
Congress could not make Schoenbergs twelve-tone scale illegal or punish math-
ematicians for physics equations that seemed to support a theory of the uni-
verses origin other than the creationism that is currently so popular. True, the
source code is a description of a method of doing something, and the code can,
if run on a computer, produce a resultbut one could argue that those attrib-
utes do not affect the First Amendments protection. Neither a recipe for hash
brownies nor a player piano roll for the Nazi Horst Wessel song could con-
stitutionally be prohibited, even though actually to make the hash brownies
would be illegal, and even though the piano roll is functional (it makes the
player piano play the tune). True, most people cannot read computer code, but
speech does not need to be common or accessible to be protected. In fact, the
courts have even held that the choice to communicate in a particular language
is constitutionally protected in some settings.
On the other hand, software code is undeniably functional. Lots of func-
tional articles can be said to have some expressive contenta gun, an airbag,
a crash helmet, a set of burglars tools, a computer virus. And many actions
have expressive content: a terrorist bombing, for example. Surely these
could be regulated by Congress? To the defendants, DeCSS looked like a
physics equation, a musical score, or a recipe. To the movie studios, DeCSS
had all the First Amendment signicance of a crowbar, lock pick, or, for
that matter, a car bombing. The same argument was repeated over the hy-
perlinks that Corley and others provided to sites which carried the DeCSS
program. Speech or function? To the defendants, forbidding 2600 to link to
these sites was like preventing the Washington Post from describing the avail-
ability of drugs on certain blocks of 16th Street. To the movie companies,
the hyperlinks were the equivalent of loading potential buyers into a van,
taking them down there, and giving them enough money to make the
purchase.
Which of the two First Amendment arguments is more convincing? That
the DMCA is a congressionally created off-switch for fair use? Or that soft-
ware code is speech and the DMCA restricts it? Like a lot of scholars, before
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Reimerdes went to trial, I thought that the rst argument was by far the more
powerful. I still do. I thought the odds of the court buying the code is
speech argument were low. About that I was wrong, though it turned out not
to matter.
A number of the reports noted that after some initial skepticism, Judge
Kaplan had been impressed by the defendants expert witnesses, particularly
those who had testied that code was speech. When the ruling came out, this
impression was conrmed. Judge Kaplan agreed that code was a form of
speech or expression. But celebration was premature. Having done so, he dis-
agreed with the defendants claim that it could not be regulated.
Computer code is expressive. To that extent, it is a matter of First Amendment
concern. But computer code is not purely expressive any more than the assassina-
tion of a political gure is purely a political statement. Code causes computers to
perform desired functions. Its expressive element no more immunizes its func-
tional aspects from regulation than the expressive motives of an assassin immunize
the assassins action. In an era in which the transmission of computer viruses
which, like DeCSS, are simply computer code and thus to some degree expressive
can disable systems upon which the nation depends and in which other computer
code also is capable of inicting other harm, society must be able to regulate the
use and dissemination of code in appropriate circumstances. The Constitution,
after all, is a framework for building a just and democratic society. It is not a
suicide pact.
9
Judge Kaplan is right in saying that there cannot be a bright-line rule immu-
nizing computer code from regulation merely because it has expressive ele-
ments. The First Amendment does not protect computer viruses. But the
defendants were not arguing that computer code was constitutionally invio-
lable, only that any law that regulated it had to be subject to First Amendment
scrutiny. After all, the government makes the description of how to make a
nuclear weapon classied information. That is clearly speech, but its regula-
tion is also constitutional. The First Amendment is not, and never was, an
absolute guarantee of freedom of speech. Instead, the question is whether the
law is within the realm of the freedom of speech guarantee, which in turn
depends on what kind of a law it is. Where does it t in the levels of
scrutiny that courts have constructed to discriminate between types of legis-
lation affecting speech? Is the DMCA a content-based regulation, such as a
law forbidding labor picketing but allowing other kinds of demonstrations?
Content-based regulations are given the highest and most demanding level
of scrutiny. Alternatively, is it a content-neutral regulation, such as a law that
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forbids talkingabout any subjectin a library? To Judge Kaplan, the an-
swer was clear, and grounds for sarcasm.
The reason that Congress enacted the anti-trafcking provision of the DMCA had
nothing to do with suppressing particular ideas of computer programmers and
everything to do with functionalitywith preventing people from circumventing
technological access control measuresjust as laws prohibiting the possession of
burglar tools have nothing to do with preventing people from expressing them-
selves by accumulating what to them may be attractive assortments of implements
and everything to do with preventing burglaries.
I agree, though it is worth noting that the burglar tool analogy is a disputed
one. Johansen claimed DeCSS was more like a screwdriversomething with
both licit and illicit uses.
So the DMCA was content-neutral regulation. That means it still has to
pass a fairly daunting legal threshold. It will only be upheld if it furthers an
important or substantial governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incidental restric-
tion on alleged First Amendment freedoms is no greater than is essential to
the furtherance of that interest.
10
Judge Kaplan felt that the DMCA satised
that standard. I am not so sure. Yes, the governmental interest in protecting
copyright holders rights is important. And yes, I must disagree with some of
my friends in the civil liberties world and say that the governments interest is
unrelated to the suppression of free expression. But is the incidental restric-
tion of First Amendment freedoms no greater than is essential to the further-
ance of that interest? In other words, could the DMCA have achieved its
goals without imposing as great a limitation on the expression of people like
Mr. Johansen and Mr. Corley?
Congress could have passed many laws less restrictive than the DMCA. It
could have only penalized the use of programs such as DeCSS for an illicit
purpose. If it wished to reach those who create the tools as well as use them, it
could have required proof that the creator intended them to be used for illegal
purposes. Just as we look at the governments intention in creating the law, we
could make the intent of the software writer critical for the purposes of assess-
ing whether or not his actions are illegal. If I write a novel detailing a clever
way to kill someone and you use it to carry out a real murder, the First
Amendment does not allow the state to punish me. If I write a manual on
how to be a hit man and sell it to you, it may. First Amendment law is gener-
ally skeptical of statutes that impose strict liability without a requirement of
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intent. But Judge Kaplan believed that the DMCA made the motives of Mr.
Johansen irrelevant, except insofar as they were relevant to the narrowly tai-
lored exceptions of the DMCA, such as encryption research. In other words,
even if Mr. Johansen made DeCSS so that he and his friends could watch
DVDs they purchased legally on computers running Linux, they could still be
liable for breaking the DMCA.
The DMCAs breadth goes further than its treatment of intent. The statute
could have only made it illegal to provide a program yourself. But Judge
Kaplan interpreted it to prohibit even linking to a site where the program is to
be found. No requirement of intent. No requirement that you actually supply
the infringing program. That is a pretty broad interpretation and one which
he admits restricts expression. How could he conclude that restrictions this
broad were no greater than essential? From his rhetoric, the answer is clear.
Judge Kaplan believes the story of the Internet Threat I discussed in Chap-
ter 4. He sees DeCSS as a poison. In fact, he thinks it is worse than a poison
because it may spread to infect others. It is a disease, a virus. The DMCA is
the stern and harsh quarantine required to control ita digital public health
measure. His reasoning is worth quoting at length.
There was a time when copyright infringement could be dealt with quite ade-
quately by focusing on the infringing act. . . . The copyright holder . . . usually was
able to trace the copies up the chain of distribution, nd and prosecute the infringer,
and shut off the infringement at the source. In principle, the digital world is very
different. Once a decryption program like DeCSS is written, it quickly can be sent
all over the world. Every recipient is capable not only of decrypting and perfectly
copying plaintiffs copyrighted DVDs, but also of retransmitting perfect copies of
DeCSS and thus enabling every recipient to do the same. . . . The process poten-
tially is exponential rather than linear. Indeed, the difference is illustrated by com-
parison of two epidemiological models describing the spread of different kinds of
disease. In a common source epidemic, as where members of a population contract
a non-contagious disease from a poisoned well, the disease spreads only by expo-
sure to the common source. If one eliminates the source, or closes the contami-
nated well, the epidemic is stopped. In a propagated outbreak epidemic, on the
other hand, the disease spreads from person to person. Hence, nding the initial
source of infection accomplishes little, as the disease continues to spread even if the
initial source is eliminated.
11
This is a very good point, and one that the critics of the DMCA sometimes
gloss over too quickly. The structure of digital replication is indeed different
from the old centralized model of copying and distribution. Instead of trac-
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ing all illicit copies back to a single infringing printing press, we face the fear
that the machinery of piracy can be copied just as fast as the copies it allows
us to make.
It is here that the defendants lose the battle of the metaphors. Yes, code is
speech, it conveys information. But viruses are codes and they convey infor-
mation too. Judge Kaplan explicitly invokes this comparison several times.
Biological viruses are tools for the replication of genetic information. They
subvert their hosts cellular programming to make copies of themselves, just as
a computer virus hijacks an infected computer and causes it to send out more
copies of the virus. True, DeCSS requires human intervention to download
the program and use it. Yet from Judge Kaplans language it is evident that he
sees the program not as an act of expression but as a virus spreading like wild-
re. Seen this way, the individual choices to download or redistribute are
simply the programs method of spreading itself, like the irritation produced
by the cold virus that encourages sneezes and coughs, thereby transmitting the
illness to others. Just as in an epidemic, the harshest measures are called for.
There is no poisoned well here, no pirate with a printing press we can shut
down. Anyone is potentially an infringer. Individuals cannot be presumed to
be healthy. We cannot give their immune systems, or their motives, the bene-
t of the doubt. Instead we must see them as potential carriers. The healthy
must be quarantined as well as the sick. Facing such a danger, Judge Kaplan
agrees that Congress needed to be draconian. We cannot wait for illegal copy-
ing. We must strike preemptively at the technology that might enable it.
There is no place for inquiries into intent here; no way that we can restrict
liability to those who actually provide the program. Thus, though code is
speech and the DMCA does incidentally restrict expression, Judge Kaplan
concludes that its restraints are no greater than is necessary.
There are three questions here. The rst is whether Congress was right. The
second is whether, in the context of the movie industry, we can see evidence of
the evil it needed to combat. The third question is very different: whether the
DMCA is constitutional. In my opinion, the answer to questions one and two
is no, for the reasons outlined in Chapter 4s analysis of the Internet Threat.
Yes, cheaper copying can increase the rate of illicit copying, but it also lowers
advertising costs and offers new business modelsNetix, downloads on de-
mand, viral distribution of trailers, and so on. The technology helps as well as
hurts. It does not help the movie industry as much as it might help the music
industry, which can more easily distribute its products over the Internet. But
the Internet also does not pose as much danger to movies as it does to music.
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The movie industrys doomsaying aside, there is no exact movie equivalent of
Napster and there is unlikely to be one in the near future.
12
This is not just because movies are longer and harder to download than
songs. It is because most people only watch a lm once. Most people do not
want a library of two thousand lms to play again and again. Music is a re-
peated experience good in a way that movies simply are not, and that social fact
profoundly affects the likelihood of downloading as opposed to rental. The
transient song on a radio or an Internet stream is not an adequate substitute for
possessing the song permanentlysomething which costs a lot more. Apart
from kids movies, which can be used to induce catatonia in ones progeny
time and again, and a few classic favorites, most people do not want to own
movies. Watching the lm on television or renting it for a night is perfectly
satisfactory. Both of these involve little hassle or cost. The content industries
are fond of saying you cannot compete with free. But this is simply not true.
Cheap and easily acquired goods of certied quality compete very well with
free goods of uncertain quality whose acquisition involves some difculty. This
is one of the main reasons the movie companies were wrong in the Sony case.
Thus while Judge Kaplans discussion of the looming digital Black Death is
nicely apocalyptic, it does not seem very accurate. How many of your friends
download movies illicitly over the Internet, let alone movies that were ripped
from DVDs? Yes, it can be done. But the actual descriptions of the process in
the Reimerdes case smack more of bathos than terror.
Although the process is computationally intensive, plaintiffs expert decrypted a
store-bought copy of Sleepless in Seattle in 20 to 45 minutes. . . . The decryption of
a CSS-protected DVD is only the beginning of the tale, as the decrypted le is very
large. . . . One solution to this problem, however, is DivX, a compression utility
available on the Internet that is promoted as a means of compressing decrypted
motion picture les to manageable size. . . . While the compressed sound and
graphic les then must be synchronized, a tedious process that took plaintiffs ex-
pert between 10 and 20 hours, the task is entirely feasible. . . . At trial, defendants
repeated, as if it were a mantra, the refrain that plaintiffs, as they stipulated, have
no direct evidence of a specic occasion on which any person decrypted a copy-
righted motion picture with DeCSS and transmitted it over the Internet. But that
is unpersuasive. Plaintiffs expert expended very little effort to nd someone in an
IRC chat room who exchanged a compressed, decrypted copy of The Matrix, one
of plaintiffs copyrighted motion pictures, for a copy of Sleepless in Seattle. While
the simultaneous electronic exchange of the two movies took approximately six
hours, the computers required little operator attention during the interim.
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So the epidemic threat that hangs over the movie industry consists of the
danger that someone will spend fteen minutes decrypting and ten to twenty
hours tediously synchronizing a movie that is then available for a speedy six-
hour download?
Admittedly, someone only needs to do the synchronizing once. There are
newer tools that make the task easier. And we could improve the download
time. But even so, would you bother? Faced with the colossal expense and
hassle of renting the same movie at Blockbuster for $3, some consumers
might prefer this process, I suppose. But I would not sell my shares in movie
studios quite yet. In fact, the real threat to movie studios is the large-scale
criminal distribution of illicitly copied DVDscopied bit for bit from the
original. The distributors of those do not need to use programs like DeCSS.
A more distant threat comes from legal recordings from television made on
TiVos and ReplayTVswhere consumers actions are legal and CSS is not
an issue. So far as we can tell, there is no measurable effect of illicit digital
downloads on sales or rentals of DVDs. We could go through the process
Judge Kaplan describes, I suppose, just as when the VCR was invented we
could have taped movies from television and swapped them with our friends.
But as the movie studios discovered after the Sony case, most of us would
rather just rent the movie. Because something is possible does not mean it
will happen.
So in my view, Congress generally overestimated the threat posed by the
digital world and underestimated the benets. In addition, the movie industry
is a weak place to make the case for the necessity of the DMCA. Fine, but that
is not the legal issue here. The constitutionality of the DMCA does not turn
on whether the DMCA was a good idea. That is not the courts decision to
make. The question is not even whether the particular industry involved is, in
reality, facing much of a threat from digital downloading. The law, after all,
exists for all digital works, not just the ones at issue here. The question is
whether the restriction on speech imposed by the DMCA was no greater
than is essential. And that is a harder question.
I still disagree with Judge Kaplan. A more narrowly tailored statute could
have accomplished the DMCAs legitimate goals without impinging as greatly
on expression. I think that the rhetoric of the Internet Threat blinded Judge
Kaplan to some important issues and led him to overestimate the danger and
thus the severity of the measures necessary to combat it. Thus, even under the
code is speech part of the analysis, I think the DMCA fails First Amendment
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scrutiny. But if we are conning ourselves to the expression inherent in the
software itself, I acknowledge that it is a close call.
Sadly, Judge Kaplan spent much less time on the other First Amendment
argument against the DMCAthat it is unconstitutional because it gives
copyright holders a new intellectual property entitlement, created by Congress
under the Copyright Clause, a legal power to deprive users of a constitution-
ally required limitation on copyrights exclusive rights. In my view, he also
framed the argument wrongly when he did discuss it. To be fair, these prob-
lems can partly be traced to the fact that the defendants spent most of their
energy on the argument that code was expression, paying less attention to
everything else. As Judge Kaplan explained it, the claim was that the DMCA
might have the effect of restricting an alleged fair use right of access to copy-
righted material. Predictably enough, he responded that there was no such
right of access. Copyright holders could always lock up the book or restrict
entrance to the gallery. In any event, while fair use of DVDs might be cur-
tailed, he argued that most movies are also available on videotape. Even if the
lm were only available on DVD, the prospective fair user could write down
the words and quote them, or record the sound from the screen. Finally, Judge
Kaplan pointed out that even if the DMCA might allow a signicant erosion
of fair use to develop over time, such a problem was not present here. Those
making First Amendment claims are sometimes allowed by courts to show
that, even if the law as it applied to them were constitutional, it would restrict
the First Amendment rights of others. Judge Kaplan declined to apply that
doctrine here. In effect, he said come back when there is a problem.
On appeal, the case was decided by a panel led by Judge Jon Newman.
Here the fair use argument received more attention but the result was the
same: Come back when there is a problem. Signicantly, both courts pointed
out another concern. The DMCA could effectively make copyright perpetual
because even though the copyright term would expire, the legally protected
encryption would continue, and tools such as DeCSS, which would have
allowed access to the public domain work, would be illegal.
13
This is a major
issue because it appears to violate both the First Amendment and the Copy-
right Clauses requirement of a limited time. The defendants did not spend
adequate time on this argument, however, and the courts again left it for later
consideration.
The court of appeals saw the defendants argument in just the same way as
Judge Kaplan had seen it: a claim that there was a fair use right of actual access
to the nest version of every work in every medium, on which the DMCA
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put a practical limitation. Such a claim was easy to dismiss. There was no such
right of guaranteed practical access. Copyright owners could restrict the prac-
tical ability to exercise fair use in many ways without the Constitution being
involved. In addition, in a world where copyrighted content is frequently
available in both analog and digital form, the actual effects of the DMCA
might be trivial and were, in any event, constitutionally acceptable. Judge New-
man repeated Judge Kaplans point that one could always make fair use of the
work in a way the DMCA did not reach, such as by videotaping a picture of
the screen.
The fact that the resulting copy will not be as perfect or as manipulable as a digital
copy obtained by having direct access to the DVD movie in its digital form, pro-
vides no basis for a claim of unconstitutional limitation of fair use. A lm critic
making fair use of a movie by quoting selected lines of dialogue has no constitu-
tionally valid claim that the review (in print or on television) would be technologi-
cally superior if the reviewer had not been prevented from using a movie camera in
the theater, nor has an art student a valid constitutional claim to fair use of a painting
by photographing it in a museum. Fair use has never been held to be a guarantee of
access to copyrighted material in order to copy it by the fair users preferred tech-
nique or in the format of the original.
Once the issue is framed this way, the case has been lost. I would argue that
there are three baseline errors here: a focus on afrmative rights of access as
opposed to limits on Congresss power in handing out exclusive rights over
expression without their constitutionally necessary limitations, a focus on prac-
tical effects of the provisions rather than on formal constitutional limitations
on the copyright system over all classes of works, and a confusion between in-
tellectual property rights and physical property rights that goes to the heart of
the Jefferson Warning discussed in Chapter 2. The question is not whether
users have a constitutionally protected right of practical access to a preferred
version of a work. The question is whether it violates the First Amendment for
Congress to give to copyright holders an intellectual property right to exempt
their copyrighted works in some formats from fair use and other provisions
that are necessary for copyright law in general to be constitutional.
Remember my earlier example. What if Congress amended Section 1201
to say Any copyright owner can make it illegal to make a fair use of a copy-
righted work by putting a red dot on their books, records, and lms before
selling them. It shall be a crime to circumvent the red dot even if, but for the
dot, the use would have been fair? This statute, I think, is clearly unconstitu-
tional. It would be no answer to say that some owners will not use the red dot,
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and even for those that do, there will be older, dotless versions still available.
It is irrelevant that I might be able to copy down the crucial lines of the book
over your shoulder while you read it and thus claim that I, personally, had not
circumvented the dot. The unconstitutionality of the statute does not turn on
whether the dots might fall off because of bad adhesive, or whether there are
many secondhand bookstores in the area, in which undotted volumes can be
found. Even if the red dot rule were only to be applied to hardback books, or
graphic novels, or cassette tapes, it would still be unconstitutional. Nor do we
have to wait until the entire marketplace is dominated by red-dotted products
before considering the issue. It is no answer to say that even before the red dot
rule, copyright holders could always have hidden their works, or locked them
in safes, or even negotiated individual contracts with the purchasers that have
the effect of limiting fair use. That way of framing it just misunderstands the
issue on a fundamental level. The claim is not about the happenstance of
practical access or the way that a copyright holder can use physical control of
an object or existing tangible property rights to undercut fair use.
The point is that Congress violates the First Amendment when, with respect
to any work, it gives me an intellectual property right to prohibit copying and
distribution of an expressive work sold in the marketplace and an additional
legal power to opt out of the limitations contained in Section 107 over that
work. The bundle of rights conveyed by the DMCA does exactly that. It is not
the DMCA alone that we must analyze. The question is whether Congress can
give the exclusive rights contained in Section 106 of the Copyright Act over a par-
ticular class of works (say digital works), if it also gives a new right to prohibit
citizens from gaining access to those works for the purposes of making a fair use. If
Judge Kaplan and Judge Newman are correct, then the DMCA gives an entirely
new intellectual property right (technically, a legal power) to the copyright
holders to do exactly that. To put it the other way around, the DMCA sub-
tracts from the citizens bundle of entitlements under federal copyright law,
the right (technically, lawyers would call it a privilege) to gain access to a work
legally in his possession for the purpose of making a fair use. It is that rule
change that is unconstitutional, I would argue, and the way Judge Kaplan and
Judge Newman frame that issue makes them miss the point.
Framing is important. The confusions that I have talked about in this book
all make an appearance. It starts with the whole controversy being framed by
the Internet Threat story line from Chapter 4. Because Judge Kaplan is con-
vinced that every citizen is now a potential infringer, a potentially infectious
virus carrier, he is ill disposed to listen to claims about fair use. Civil liberties
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claims do not do very well in epidemics. It is only right for him to defer to
Congresss perception of the problem and the solution, of course. But he buys
so deeply into the magnitude of the threat, the extent of the potential piracy
pandemic, that it is very hard for him to take seriously the idea that even here
there is a legitimate constitutional fair use claim.
The Sony Axiom from Chapter 4 is also ignored, or at least undervalued.
As I pointed out there, without a robust set of exceptions and limitations on
copyright, the idea that cheaper copying requires greater control will inexorably
drive us toward the position that the technologies of cheaper reproduction
must be put under the governance of copyright holders. The DMCA contin-
ues that logic; its drafters concluded that the right to get access to digital
works for purposes of making a fair use must be taken from the bundle of
rights possessed by citizens, while the right to enjoin both access and the tech-
nologies of access is added to those of copyright holders. Never mind the
correctness of such a conclusion as a matter of policy. Are there constitutional
limitations on Congress taking such an action? Kaplan and Newman in effect
tell us, not yet.
More important than the perception of the threat is the understanding of
what intellectual property is all about. In Chapter 2, Jefferson warned us that
intellectual property rights are not like physical property rights. In analyzing
the DMCA, where do we turn for analogies? To physical property, violence,
and theft. The cases analyzing the DMCA are full of analogies to trespass, to
breaking and entering, to burglars tools, and to safecrackers. Private property
carries a lot of baggage with it, but we know it wellit is the place we natu-
rally turn for insight. Even I, in order to point out some of the difculties
with those analogies, had to turn to farmers and barbed wire and public
rights-of-way along highways. There is nothing wrong with analogies. They
help us understand things that are new by comparing them to things we think
we understand better. Analogies are only bad when they ignore the key differ-
ence between the two things being analyzed. That is what happens here.
Jefferson reminded us that intellectual property rights are clearly artifacts of
state creation, monopolies whose internal limitations in scope, duration, and
so on are just as important as the rights themselves. Jefferson doubts whether
even property rights over land can be understood as natural and absolute
copyrights and patents, which cover subject matter that can be innitely repro-
duced without diminishing its substance, clearly cannot. They frequently involve
a claim to control purchasers behavior with respect to some aspect of an arti-
fact after it has been sold to them in the marketplace, making simpleminded
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analogies to breaking and entering inappropriatethe extent of the prop-
erty in question is precisely the issue in dispute. (When Johansen was tried in
Norway under the national computer crime law, the court laconically ob-
served that he had bought the DVDs, and one cannot break into ones own
propertyeffectively turning the analogy on its head.) Jefferson starts from
the baseline that monopoly is the exception and freedom is the ruleany lim-
itations on that freedom have to be justied. That is why he always discusses
the right and the limitations on the right as an inseparable pair. One cannot
discuss them in isolation.
Kaplan and Newman are ne, thoughtful judges. They do not altogether
ignore those points. But look how the analysis is set up. At several points in
the discussion, there seems to be the assumption that copyright owners have
entitlements to total control as of right and that fair use is a mere lucky loop-
hole which, because it can be negated by the happenstance of whether one can
get physical access, can hardly have major First Amendment status. They keep
pointing out that physical control and tangible property rights frequently
allow copyright holders to make fair use impracticable. And so what? Jeffer-
son might have responded. This is a classic non sequitur. The question is
whether the Congress has the power to add a new right of access-denial to the
intellectual property monopoly it is constructing, underminingas to some
works and some fair usesthe balance that the law sets up. The citizen is not
pleading for a new right of access, trumping all physical restraint and tangible
property rights. The citizen is claiming that Congress has no power to give
exclusive rights to restrain copying of digital content while simultaneously
taking away the citizens existing right to get access to that content for the
purposes of fair useat least in those cases where access is physically possible
and violates no other property right, real or intellectual.
The Constitution does not require the United States to break into Presi-
dent Nixons desk to get me his tapes, buy me a tape recorder, or give me a
right to 18.5 minutes on the broadcast airwaves to play them. But if I can get
access to the tapes legally, it does forbid the government from giving Presi-
dent Nixon the power to put a red dot on those tapes and thus claim an in-
tellectual property right to stop me playing them on TV or digitizing them
to make the sounds clearer. The restraints imposed by physical happenstance
and tangible property rights are different from those imposed by copyright
a congressionally created monopoly over expression. We cannot assume be-
cause one is constitutionally acceptable that the others are too. Jefferson
understood that, and his analysis can help us even in a constitutional conict
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over a technology he could hardly have dreamt of. (Though perhaps with
Jefferson, this is a bad bet.)
The same point comes up in a different way when the court disconnects the
fair use discussion from the exclusive rights discussion. The question is not
Do I have a constitutionally protected right of physical access to a preferred
version of a movie, so as to make my task easy? That gets the court caught up
in questions of when a majority of movies will only be available on DVD, or
how poor a substitute the analog version would be, or how many fair uses will
require actually cutting a digital fence. But all of these inquiries miss the point.
The question is Can Congress hand out the exclusive rights of copyright over
digital works if it does not accompany those rights with the suite of limitations
that the court has repeatedly said saves copyright from violating the First
Amendment? The proportion of digital works to the total number of works
produced in other formats is irrelevant. As to these works, the rule is unconsti-
tutional. But what about the number or proportion of types of fair uses
affected? That is more relevant but still not dispositive in the way Kaplan and
Newman imagined. True, not every trivial statutory modication of fair use
makes copyright unconstitutional. But this is not a trivial modication: over
an entire class of works, copyright owners are given a legal power to deprive
users of their privilege to gain otherwise lawful access for the purposes of fair
use. If you give the digital lmmaker the exclusive rights of copyright but for-
bid the lm professor from going through the otherwise lawful process of par-
odying or quoting, that rule is unconstitutional, no matter how many other
fair uses are unaffected. If the copyright law were amended to forbid journalists
playing, on a Friday, excerpts of legally acquired red-dotted tapes made by pres-
idents whose last name begins with N, it would still be unconstitutional.
The legal implementation of this conclusion would be simple. It would be
unconstitutional to punish an individual for gaining access in order to make a
fair use. However, if they cut down the digital fence to make illicit copies,
both the cutting and the copying would be illegal. But what about the prohi-
bition of trafcking in digital wire cutters, technologies such as DeCSS? There
the constitutional question is harder. I would argue that the First Amendment
requires an interpretation of the antitrafcking provisions that comes closer to
the ruling in the Sony case. If Mr. Johansen did indeed make DeCSS to play
DVDs on his Linux computer, and if that were indeed a substantial nonin-
fringing use, then it cannot be illegal for him to develop the technology. But
I accept that this is a harder line to draw constitutionally. About my rst
conclusion, though, I think the argument is both strong and clear.
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Ironically, there is some support for my claim and it comes from an even
higher, if not uniformly more thoughtful, set of judges than Newman and
Kaplan. In the depressing case of Eldred v. Ashcroft, the Supreme Court up-
held retrospective copyright term extensions against a variety of constitutional
challenges. (Full disclosure: I assisted in the preparation of an amicus curiae
brief in the case.) One of those challenges was based on the First Amendment.
The fairly reasonable claim was that Congress could not retroactively lock up
an entire twenty-year swathe of culture that had already been produced. Such
a law would be all restraint of expression, performance, republication, adap-
tion, and so on, with no incentive benets. The Court was unconvinced. But it
did say:
To the extent such assertions raise First Amendment concerns, copyrights built-in
free speech safeguards are generally adequate to address them. We recognize that
the D.C. Circuit spoke too broadly when it declared copyrights categorically im-
mune from challenges under the First Amendment. . . . But when, as in this case,
Congress has not altered the traditional contours of copyright protection, further First
Amendment scrutiny is unnecessary.
14
The DMCA, of course, does exactly this. As to digital works it alters the tra-
ditional contours of copyright protection in a way that affects copyrights
built-in free speech safeguards. That is what the Farmers Tale was all about.
Perhaps one day, in a case not involving a Norwegian teenager, a hacker maga-
zine run by a long-haired editor with an Orwellian nom de plume, and an ob-
scure technology that is accused of posing apocalyptic threats to the American
lm industry, that point will come out more clearly.
But the issue of speech regulation is only half of the story. Intellectual prop-
erty rights over digital technologies affect not only speech, but the framework
of competition and markets as well, as the next example makes clear.
The Apple of Forbidden Knowledge:
The DMCA and Competition
You could tell it was a bizarre feud by the statement Apple issued, one
strangely at odds with the Californian Zen-chic the company normally proj-
ects. We are stunned that RealNetworks has adopted the tactics and ethics of
a hacker to break into the iPod, and we are investigating the implications of
their actions under the DMCA and other laws.
15
What vile thing had RealNetworks done? They had developed a program
called Harmony that would allow iPod owners to buy songs from Reals Music
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Store and play them on their own iPods. Thats it. So why all the outrage? It
turns out that like the story of DeCSS, this little controversy has a lot to teach
us about the landscape of intellectual property disputes, about the mental
topography of the high-tech economy. But where the DeCSS case was a war
of metaphors around the boundaries of freedom of expression, the iPod story
is about ways in which intellectual property marks the limits of competition.
Apple iPods can be used to store all kinds of material, from word processing
documents to MP3 les. If you want to use these popular digital music players
to download copy-protected music, though, you have only one source: Apples
iTunes service, which offers songs at 99 cents a pop in the United States, 79
pence in the United Kingdom. If you try to download copy-protected mate-
rial from any other service, the iPod will refuse to play it. Or at least, that had
been the case until Real managed to make their Harmony service compatible.
Reals actions meant that consumers had two sources of copy-protected
music for their iPods. Presumably all the virtues of competition, including
improved variety and lowered prices, would follow. The iPod owners would
be happy. But Apple was not. The rst lesson of the story is how strangely
people use the metaphors of tangible property in new-economy disputes.
How exactly had Real broken into the iPod? It had not broken into my
iPod, which is after all my iPod. If I want to use Reals service to download
music to my own device, wheres the breaking and entering?
What Real had done was make the iPod interoperable with another for-
mat. If Boyles word processing program can convert Microsoft Word les
into Boyles format, allowing Word users to switch programs, am I breaking
into Word? Well, Microsoft might think so, but most of us do not. So leaving
aside the legal claim for a moment, where is the ethical foul?
Apple was saying (and apparently believed) that Real had broken into some-
thing different from my iPod or your iPod. They had broken into the idea
of an iPod. (I imagine a small, platonic white rectangle, presumably imbued
with the spirit of Steve Jobs.) Their true sin was trying to understand the iPod
so that they could make it do things that Apple did not want it to do. As an
ethical matter, does guring out how things work, in order to compete with
the original manufacturer, count as breaking and entering? In the strange
netherworld between hardware and software, device and product, the answer
is often a morally heartfelt yes! I would stress morally heartfelt. It is true
manufacturers want to make lots of money and would rather not have com-
petitors. Bob Young of Red Hat claims every business person wakes up in the
morning and says how can I become a monopolist? Beyond that, though,
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innovators actually come to believe that they have the moral right to control
the uses of their goods after they are sold. This isnt your iPod, its Apples iPod.
Yet even if they believe this, we dont have to agree. In the material world,
when a razor manufacturer claims that a generic razor blade maker is stealing
my customers by making compatible blades, we simply laugh. The hacking
there consists of looking at the razor and manufacturing a blade that will t.
To say this is somehow immoral seems laughable. Is the conclusion changed
when the information about compatibility is inscribed in binary code and
silicon circuits, rather than the molded plastic of a razor cartridge? What if
ensuring the t between the two products is not a matter of making sure the
new blades snugly connect to the razor but of making sure the software
embedded in my generic product sends the right code to the original product
in order to be recognized? Our moral intuitions are a little less condent here.
All kinds of bad policy can ourish in that area of moral uncertainty.
This leads us to the law. Surely Apples suggestion that the DMCA might
prohibit what Real had done is as baseless as their moral argument? In the
United States, the answer is probably, at least if the courts continue in the
direction they are currently taking, but it is a closer call than you would think.
Internationally, the answer is even less certain. That is where the iPod war pro-
vides its second new-economy lesson. Think for a moment about the way that
the law shapes the business choices in this dispute.
In a competitive market, Apple would choose whether to make the iPod an
open platform, able to work with everyones music service, or to try to keep
it closed, hoping to extract more money by using consumers loyalty to the
hardware to drive them to the tied music service. If they attempted to keep it
closed, competitors would try to make compatible products, acting like the
manufacturers of generic razor blades or printer cartridges.
The war would be fought out on the hardware (and software) level, with the
manufacturer of the platform constantly seeking to make the competing prod-
ucts incompatible, to bad-mouth their quality, and to use fear, uncertainty, and
doubt to stop consumers from switching. (Apples actual words were: When
we update our iPod software from time to time, it is highly likely that Reals
Harmony technology will cease to work with current and future iPods.) Mean-
while the competitors would race to untangle the knots as fast as the platform
manufacturer could tie them. If the consumers got irritated enough they could
give up their sunk costs and switch to another product altogether.
All of this seems ne, even if it represents the kind of socially wasteful arms
race that led critics of capitalism to prophesy its inevitable doom. Competition
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is good and competition will often require interoperability. But what do we
mean by competition? Is it competition if I assassinate your employees or
poison the food in your restaurant? If I trespass on your land in order to sell a
competing product? If I break into your safe to steal your trade secrets, use my
monopoly position in the market to impose resale price agreements, or violate
your patent? It is the law that draws the line between competition and theft,
between virtuous competitive imitation and illicit piracy.
Sometimes we need to give innovators property rights that allow them to
prevent second-comers from free riding on their efforts. We have to do so
because it is necessary to encourage future innovation. On the other hand,
sometimes we not only allow the second-comer to free ride, we positively en-
courage it, believing that this is an integral part of competition and that there
are adequate incentives to encourage innovation without the state stepping in.
Intellectual property policy, indeed a large part of the policy behind all prop-
erty rights, is about drawing the line between the two situations. Too far in
one direction and innovation suffers because potential investors realize good
ideas will immediately be copied. Too far in the other direction and monopo-
lies hurt both competition and future innovation.
Imagine you are the rst person to invest in getting the public to eat burri-
tos for breakfast, or to place a petrol station at a certain crossroads, or to clip
papers together with a folded bit of wire. In each case we give you some prop-
erty rights. The fast-food vendor may own a trademarked phrase or jingle that
the public learns to associate with his product. Since the patent ofce issued a
patent for the sealed and crimped peanut butter and jelly sandwich I de-
scribed at the beginning of the book, even a patent is not out of the question
if your disgusting concoction is sufciently novel and nonobvious. But we
should not allow you to have a patent over all burritos, or burritos for break-
fast, still less over the idea of fast food. As for the paper clip maker, there
might be a trademark over the particular paper clip, but the idea of folding
wire to secure paper stays in the public domain. The owner of the petrol station
gets physical ownership of the land, but cannot stop a second-comer from set-
ting up shop across the road, even if the rst-comers labor, capital, and effort
proved that the location is a good one. We positively encourage follow-on im-
itation in those cases.
Now how about the case in point? What does Apple get in the way of prop-
erty rights? Think back to my description of the intellectual property system
in Chapter 1. They can get patents over those aspects of the iPodboth hard-
ware and softwarethat are sufciently innovative. Patents are what we use
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to protect inventions. They also get a copyright over the various pieces of soft-
ware involved. That protects them only against someone who copies their
code, not someone who writes new software to do the same thing. Copyrights
are what we use to protect original expression. They get rights under trade-
mark law over the name and perhaps parts of the design of the product
maybe the distinctive look of the iPodthough that is a bit more complex.
All of these rights, plus being the rst to break into the market in a big way,
the brilliance of the design, and the tight integration between the hardware
and the service, produce a formidable competitive advantage. The iPod is a
very good product.
Now if a competitor infringes any of Apples rights, for example by making
a literal copy of the code, using their trademark in a way the law does not allow,
or infringing on one of their patents, then Apple can shut them down and
extract hefty damages. Quite right, too. But should they be able to prevent
someone from making an interoperable product, provided they do not violate
any of these existing rights in the process? Laws like the DMCA make that
question more complicated.
Nowadays, there is software in many, many more products than you would
imagine. Your watch, your phone, your printer, your thermostat, your garage
door opener, your refrigerator, your microwave, your televisionthe odds are
that if you bought them in the last ten years, they have some software compo-
nent. In the 1970s the courts and Congress had concluded that software could
be copyrighted as original expression, like a song or a novel, as well as being
patented when it was novel, nonobvious, and useful. Frequently, different
aspects of the same program will be covered by copyright and by patent. But
software is a machine made of words, the machine of the digital age. That fact
already causes some problems for our competition policy. Will the exceptions
and limitations designed to deal with a copyright over a novel work ade-
quately when they are applied to Microsoft Windows? That issue was already
unclear. With the DMCA, we have added another crucial problem. Where
there is copyrighted software there can be digital fences around it. If the copy-
right owner can forbid people to cut these fences to gain access to the soft-
ware, then it can effectively enlarge its monopoly, capture tied services, and
prohibit generic competition.
It was just this line of thought that led some other companies to do more
than merely make threatening noises about the DMCA. Lexmark makes print-
ers. But it also makes lots of money off the replacement ink or toner cartridges
for those printers. In some cases, in fact, that is where printer companies make
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the majority of their prots. As a result, they are not exactly keen on generic
replacements. Chamberlain makes garage door opener systems. But they also
sell replacements for the controllersthe little devices that you use to trigger
the door. Lawyers from both of those rms looked at the DMCA and saw a
chance to do something most companies would love to do; to make generic
competition illegal. Lexmark designed their printer program so that it would
not accept a toner cartridge unless it received the correct checksum or vali-
dation number. So far, this looks no different from the razor manufacturer
trying to make it difcult to manufacture a compatible replacement blade.
Generic competitors now had to embed chips in their printer cartridges which
would produce the correct code, otherwise they would not work in Lexmark
printers.
Static Control Components is a North Carolina company that manufactures
chips whose main function is to send the correct code to the printer program.
With this chip implanted in them, generic cartridges would work in Lexmark
printers. Lexmarks response could have been to change their program, ren-
dering the chip obsolete, just as Apple could change the iTunes software to
lock out Real Musics Rhapsody. Doing so would have been quite within their
rights. Indeed it is a standard part of the interoperability wars. Instead, Lexmark
sued Static Controls, claiming, among other things, a violation of the DMCA.
16
Like Apple in the press release I quoted earlier, Lexmark clearly saw this as a
kind of digital breaking and entering. This was their printer, their printer pro-
gram, their market for replacement cartridges. Static was just helping a bunch
of cheats camouage their generic cartridges as authentic Lexmark cartridges.
Translated into the legal language of the DMCA the claim is a little different,
but still recognizable. Static was trafcking in a device that allowed the cir-
cumvention of a technical protection measure used to prevent access to a
copyrighted worknamely the computer program inside the printer. That is
behavior that the DMCA forbids.
The garage door company, Chamberlainwho also claimed to be concerned
about the security of their garage doorsmade a similar argument. In order
to get the garage door to open, the generic replacement opener had to provide
the right code to the program in the actual motor system. That program is
copyrighted. The code controls access to it. Suddenly, the manufacturers of
generic printer cartridges and garage door openers start to look rather like Jon
Johansen.
Surely the courts did not accept this argument? Bizarrely enough, some
of them didat least at rst. But perhaps it was not so bizarre. The DMCA
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was indeed a radical new law. It did shift the boundaries of power between
intellectual property owners and others. And intellectual property rights are
always about restraining competition, dening what is legitimate and what is
notthat is what they do. There was a respectable argument that these de-
vices did in fact violate the DMCA. In fact, it was respectable enough to
convince a federal judge. The district court judge in the Lexmark case con-
cluded that Lexmark was likely to win on both the DMCA claim and on a
more traditional copyright claim and issued an injunction against Static
Control. In Skylink, the case involving garage door openers, by contrast, the
district court held that the universal garage door opener did not violate
the DMCA. Both cases were appealed and both appeals courts sided with
the generic manufacturers, saying that the DMCA did not prohibit this
kind of accessmerely making a computer program work the way it was
supposed to.
The U.S. Court of Appeals for the Federal Circuit (CAFC) heard the
Skylink appeal. In a remarkably far-reaching decision, the court effectively
took many of the positions that Mr. Corleys lawyers had argued for in the
DeCSS case, but they did so not to protect speech, but to protect competi-
tion. In fact, they implied that taking Chamberlains side in the case would
silently overrule the antitrust statutes. They also interpreted the new right
created by the DMCA so as to add an implicit limitation. In their construc-
tion, merely gaining access is not illegal; only gaining access for the purpose
of violating the copyright holders rights violates the statute. The Reimerdes
court had been willing to accept that the new access right allows a copyright
holder to prohibit fair uses as well as foul. When Chamberlain made the
same argument as to their garage door opener program, the CAFC was
incredulous.
Such an entitlement [as the one Chamberlain claims] would go far beyond the idea
that the DMCA allows copyright owner to prohibit fair uses . . . as well as foul.
Reimerdes, 111 F. Supp. 2d at 304. Chamberlains proposed construction would al-
low copyright owners to prohibit exclusively fair uses even in the absence of any
feared foul use. It would, therefore, allow any copyright owner, through a combi-
nation of contractual terms and technological measures, to repeal the fair use doc-
trine with respect to an individual copyrighted workor even selected copies of
that copyrighted work.
17
There are multiple ironies here. The CAFC rarely meets an intellectual prop-
erty right it does not like. It has presided over a twenty-year expansion of
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American patent law that many scholars nd indefensible. But when (for du-
bious jurisdictional reasons) it sorties beyond its traditional ambit of patent
law, it is stunned by the potential expansiveness of the DMCA. Then there
is the comparison with the Reimerdes case. How interesting that the First
Amendment and concerns about free expression have comparatively little bite
when applied to the DMCA, but antitrust and concerns about competition
require that we curtail it. After all, the heart of Mr. Johansens argument was
that he had to write the DeCSS program in order to play his own DVDs on
his own computerto get access to his own DVDs, just as the purchaser of a
replacement garage door control is getting access to the program that operates
his own garage door. Indeed, Mr. Johansens criticism of CSS was that it
allowed the movie companies, through a combination of contractual terms
and technological measures, to repeal the fair use doctrine with respect to an
individual copyrighted work. Mr. Corley echoed those claims.
Of course, the situations are not identical. The key limitation in Skylink is
that the court saw no threat of foul use. The Reimerdes court could see little
else. On the other hand, the rulings are not easily reconciled. The Skylink
court cannot imagine that Congress would want to give the copyright holder
a new property right to prevent access unconnected to any underlying copy-
right violation.
As we have seen, Congress chose to create new causes of action for circumvention
and for trafcking in circumvention devices. Congress did not choose to create new
property rights. . . . Were we to interpret Congresss words in a way that eliminated
all balance and granted copyright owners carte blanche authority to preclude all
use, Congressional intent would remain unrealized.
Yet, arguably, that is exactly what the Reimerdes decision does, precisely
because it focuses on enabling access alone, not access for the purpose of vio-
lating one of the rights of the copyright holder. The Reimerdes court saw a vi-
olation of the law just in cutting the wire or making a wire cutter. The Skylink
court focused on whether the person cutting the wire was going to trespass
once the cutting was done. In effect, the two courts disagree on which of the
options offered to the legislature in the Farmers Tale was actually enacted by
Congress. Which court is correct? The Skylink decision strikes me as sensible.
It also makes the statute constitutionally much more defensiblesomething
that the Skylink court does not consider. But in the process, it has to rewrite
the DMCA substantially. One should not presume that it will be this inter-
pretation that will triumph.
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SUMMING UP: EXAGGERATIONS,
HALF-TRUTHS, AND BIPOLAR DISORDERS
IN TECHNOLOGY POLICY
Let me return to the question with which I began the chapter. For many critics
of contemporary intellectual property law, the DMCA is the very embodi-
ment of all that is wrong. (I still cherish a friends account of British protesters
outside the American Embassy in London singing D-M-C-A to the tune of
the Village Peoples YMCA and holding up signs calling for the laws repeal
to the great confusion of the diplomatic personnel.) The critics conjure up
a digital apocalypsea world of perfect control achieved through legally
backed digital fences, in which both speech and competition suffer, and where
citizens lose privacy, the privilege of fair use, and the right to criticize popular
culture rather than simply consume it. In their view, the legal disaster is only
exacerbated by bumbling judges who do not understand the technology and
who are easily fooled by the doom-laden rhetoric of the content companies.
The DMCAs supporters, on the other hand, think criticisms of the DMCA
are overblown, that the dark tales of digital control are either paranoid delu-
sions or tendentious exaggerations, and that far from being excessive, the
DMCAs provisions are not sufcient to control an epidemic of illicit copy-
ing. More draconian intervention is needed. As for fair use, as I pointed out
before, many of the DMCAs supporters do not think fair use is that im-
portant economically or culturally speaking. At best it is a loophole that
copyright owners should have the right to close; certainly not an afrmative
right of the public or a reserved limitation on the original property grant from
the state.
Who is right? Obviously, I disagree profoundly with the DMCAs support-
ers. I wrote this book partly to explainusing Jefferson and Macaulay and
the Sony casewhat was wrong with their logic. It would be both convenient
and predictable for me to claim that the DMCA is the intellectual property
incarnation of the Antichrist. But it would not be true. In fact, I would not
even put the DMCA in the top three of bad intellectual property initiatives
worldwide. And many of the fears conjured up about it are indeed overblown.
Of course, the critics have a point. The DMCA is a very badly drafted law.
As I have tried to show here, its key provisions were probably unnecessary and
are, in my view, unconstitutional. If coupled with a number of other legal
innovations favored by the content industry, the DMCA could play a very
destructive role. In general, in fact, the Farmers Tale is fairly accurate in de-
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scribing both the origins of and the threats posed by the DMCA. Yet the
single largest of those threatsthe idea that the DMCA could be used to
fence off large portions of the public domain and to make the fair use provi-
sions of the Copyright Act essentially irrelevantis still largely a threat rather
than a reality. In some cases, fair use rights are curtailed. But for most citizens
and for the majority of media, the DMCA has had relatively little effect. Dig-
ital rights management (DRM) certainly exists; indeed it is all around us. You
can see that every time you try to play a DVD bought in another part of the
world, open an Adobe eBook, or copy a song you have downloaded from
iTunes. But so far, the world of legally backed digital rights management has
not brought about the worst of the dystopian consequences that some people,
including me, feared might result.
In many cases, citizens simply reject digital rights management. They will
not buy products that use it. Attempts to introduce it into music CDs, for
example, have been a resounding failure. In other cases, DRM has not been
used in ways that the critics feared. There are genuine scandals, of course
cryptography research has been chilled, the DMCA has been turned to anti-
competitive ends, and so on. It is also troubling to see federal judges issuing
injunctions not only against banned material but also against those who link
to the banned material. Somehow the blithe reassurance that this is consistent
with the First Amendment fails to comfort one. But many of the evils proph-
esied for the DMCA remain as just that: prophecies.
There are also entries on the positive side of the ledger. The safe-harbors
that the DMCA gave Internet service providers and search services have been
a vital and positive force in the development of the Internet. It may even be
true that in some cases, such as iTunes, the DMCA did what its backers
claimed it wouldencourage new provision of digital content by reassuring
the record companies that they could put their music online surrounded by
legally backed digital rights management. (Notably, however, the trend is now
going the other way. Companies are coming to realize that many consumers
prefer, and will pay more for, unprotected MP3 les.)
Of course, depending on your view of the music industry, that might seem
like a mixed blessing. One might also wonder if the same consumer benets
might have been produced with a much less restrictive law. But with the
exception of a few important areassuch as cryptography research, where its
effects are reported to be severeI would have to say that the criticisms focus
too much on the DMCA, to the exclusion of the rest of the intellectual property
landscape. Yes, the DMCA offers enormous potential for abuse, particularly
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in conjunction with some other developments in intellectual property that
I will discuss later, but much of the abuse has not yet happened. Yet even if
it never did happen, the DMCA has important lessons to teach us.
In this section I have tried to show how legal rulesparticularly intellectual
property rulesdene the boundaries of legitimate competition. We used to
assume that this was principally the function of patent and trademark law, less
so of copyright. Of course, copyright would affect competition in publishing
and in the TV and movie industries, but it hardly seemed central to competi-
tion policy in general. But once courts and legislatures accepted that software
is copyrightable, that assessment changed. The levers and cogs of the machines
of the modern economy are forged out of ones and zeros instead of steel and
brass. In that situation, copyright is central to the competition policy of a
high-tech economy.
As the Apple case shows, our moral intuitions about competition are going
to be cloudier in the world of digital content and cyberspace. The same is true
of the law. Even in the material world it can be hard to draw the line between
the legitimate and ruthless pursuit of commercial advantage and various forms
of unfair competition, antitrust violations, and so on. But in the immaterial
world, the boundaries are even harder to draw. Is this the digital equivalent of
trespass or legitimate passage on a public road that runs through your prop-
erty? As I pointed out earlier, the constant analogies to physical property are
likely to conceal as much as they reveal. Is this virtuous competitive imitation
or illicit copying? We have strong, and by no means coherent, moral and legal
intuitions about the answers to such questions. And our legal structure often
gives us the raw material to make a very good case for both sides of the
argument.
Into this already troubled situation, with a set of rules designed for original
expression in novels and poems being applied to machines made of computer
code, we add the DMCA and its new rights of uncertain extent. Copyright
had a well-developed set of exceptions to deal with anticompetitive behavior.
Where the existing exceptions did not function, courts tended to turn to fair
use as the universal method for patching the system upthe duct tape of the
copyright system. Without an evolving idea of fair use, copyright would over-
shoot its bounds as it was applied to new technologies and new economic
conditions. Indeed that was the point of the Sony Axiom. The DMCA threw
this system into disarray, into a war of competing metaphors.
The Skylink court sees monopolists being handed carte blanche to abolish
the restraints on their monopolies. Competition policy demands that we
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construe the DMCA narrowly. The Reimerdes court sees a virus masquerading
as speech, a digital pandemic that must be stopped at all costs by a draconian
program of electronic public health. Each proceeds to construe the statute
around the reality they have created. It is by no means certain which metaphor
will win the day, still less which resolution will triumph in other countries that
have passed versions of the DMCA. International attitudes toward speech,
competition, and the necessary exceptions in a copyright system vary widely.
Yet backed by the story of the Internet Threat, the content companies are al-
ready saying that we need to go further both nationally and internationally
introducing more technology mandates, requiring computers to have hardware
that will only play approved copyrighted versions, allowing content compa-
nies to hack into private computers in search of material they think is theirs,
and so on. Remember the suggestion from the beginning of the chapter, that
all cars be assumed to be getaway vehicles for the felonious lchers of vegeta-
bles, and thus that they should be tted with radio beacons, have the size of
their cargo space reduced, and so on? The Farmers Tale continues to evolve.
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6
I Got a Mashup
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So far, I have talked about the root ideas of intellectual property. I
have talked about its history, about the way it inuences and is inu-
enced by technology. I have talked about its effects on free speech
and on competition. Until now, however, I have not described the
way that it actually affects culture. This chapter aims to rectify the
omission, looking at the way copyright law handles one specic form
of cultural creationmusic. It turns out that some of the problems
identied in Chapters 4 and 5 are not simply the result of a mismatch
between old law and new technology, or the difculties posed in ap-
plying copyright to software, to machines made of words. The same
issues appear at the heart of a much older cultural tradition.
This is the story of a song and of that songs history. But it is also
a story about property and race and art, about the way copyright law
has shaped, encouraged, and prohibited music over the last hundred
years, about the lines it draws, the boundaries it sets, and the art it
forbids.
Music is hard for copyright law to handle. If one had to represent
the image of creativity around which copyright law and patent law,
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respectively, are built, patent laws model of creativity would be a pyramid and
copyright laws a fountain, or even an explosion.
In patent law, the assumption is that technological development converges.
Two engineers from two different countries tend to produce similar ways of
catching mice or harnessing the power of steam. There are a limited number
of good ways of accomplishing a technical task. In addition, technological
progress is assumed to be incremental. Each development builds on the ones
behind it. Based on this image, patent law makes a series of decisions about
what gets covered by property rights, for how long, how to handle subsequent
improvements, and so on. Patent rights last for a short time, not only to lower
costs to consumers, but because we want to build on the technology inventors
have created as soon as possible, without getting their permission. Even during
the patent term, subsequent improvers get their own rights and can bargain
with the original patent holder to share the prots.
Copyrights assumptions are different. Copyright began with texts, with
creative expression. Here the assumption is (generally) that there are innite
possibilities, that two writers will not converge on the same words, and that
the next generation of storytellers does not need to take the actual stuff that
copyright covers in order to make the next play or novel. (It may be because of
this image that so few policy makers seem to worry that copyright now lasts
for a very long time.) Subsequent improvements of copyrighted material are
called derivative works, and without the rights holders permission, they are
illegal. Again, the assumption seems to be that you can just write your own
book. Do not claim you need to build on mine.
Of course, each of these pictures is a caricature. The reality is more com-
plex. Copyright can make this assumption more easily because it does not
cover ideas or factsjust their expression. Boy meets girl, falls in love, girl
dies is not supposed to be owned. The novel Love Story is. It is assumed that
I do not need Erich Segals copyrighted expression to write my own love story.
Even if literary creativity does converge around standard genres, plots, and
archetypes, it is assumed that those are in the public domain, leaving future
creators free to build their own work without using material that is subject to
copyright. We could debate the truth of that matter for literature: the expan-
sion of copyrights ambit to cover plotlines and characters makes it more
questionable. Certainly many recognized forms of creativity, such as the pas-
tiche, the collage, the literary biography, and the parody need extensive access
to prior copyrighted work. But regardless of how well we think the image of
individual creativity ts literature, it ts very poorly in music where so much
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creativity is recognizably more collective and additive, and where much of the
raw material used by subsequent creators is potentially covered by copyright.
So how does the accretive process of musical creativity fare in the modern
law and culture of copyright? How would the great musical traditions of the
twentieth centuryjazz, soul, blues, rockhave developed under todays
copyright regime? Would they have developed at all? How does the law apply
to the new musicians, remixers, and samplers who offer their work on the In-
ternet? Do the lines it draws t with our ethics, our traditions of free speech
and commentary, our aesthetic judgments? It would take a shelf of books to
answer such questions denitively. In this chapter, all I can do is suggest some
possibilitiesusing the history of a single song as my case study.
On August 29th, 2005, a hurricane made landfall in Louisiana. The forecasters
called it Hurricane Katrina, quickly shortened to Katrina as its story took
over the news. The New Orleans levees failed. Soon the United States and then
most of the world was watching pictures of a ooded New Orleans, seeing
pleading citizensmainly African-Americanand a Keystone Cops response
by the Federal Emergency Management Agency. The stories from New Or-
leans became more and more frightening. There were tales not only of natural
disasterdrownings, elderly patients trapped in hospitalsbut of a collapse of
civilization: looting, murder and rape, stores being broken into with impunity,
rescue helicopters red upon, women and children sexually assaulted in the
convention center where many of the refugees huddled. Later, it would turn
out that many, perhaps most, of these reports were untrue, but one would not
have guessed that from the news coverage.
The television played certain images over and over again. Peopleagain,
mainly African-Americanswere portrayed breaking into stores, pleading
from rooftops, or later, when help still had not arrived, angrily gesturing and
shouting obscenities at the camera.
As the disaster unfolded in slow motion, celebrities began appearing in
televised appeals to raise money for those who had been affected by the
storm. Kanye West, the hip hop musician, was one of them. Appearing on
NBC on September 2, with the comedian Mike Myers, West started out
seeming quietly upset. Finally, he exploded.
I hate the way they portray us in the media. You see a black family, it says, Theyre
looting. You see a white family, it says, Theyre looking for food. And, you
know, its been ve days [waiting for federal help] because most of the people are
black. . . . So anybody out there that wants to do anything that we can helpwith
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the way America is set up to help the poor, the black people, the less well-off, as
slow as possible. I mean, the Red Cross is doing everything they can. We already re-
alize a lot of people that could help are at war right now, ghting another way
and theyve given them permission to go down and shoot us!
Myers, who, according to the Washington Post, looked like a guy who
stopped on the tarmac to tie his shoe and got hit in the back with the 8:30 to
LaGuardia, lled in with some comments about the possible effect of the
storm on the willingness of Louisiana citizens to live in the area in the future.
Then he turned back to West, who uttered the line that came to epitomize
Katrina for many people around the world, and to infuriate a large number
of others. George Bush doesnt care about black people! Myers, the Post
wrote, now look[ed] like the 8:30 to LaGuardia turned around and caught
him square between the eyes.
1
In truth, he did appear even more stunned
than before, something I would not have thought possible.
In Houston, Micah Nickerson and Damien Randle were volunteering to
help New Orleans evacuees at the Astrodome and Houston Convention Cen-
ter during the weekend of September 3. They, too, were incensed both by the
slowness of the federal response to the disaster and by the portrayal of the
evacuees in the media. But Mr. Nickerson and Mr. Randle were not just vol-
unteers, they were also a hip-hop duo called The Legendary K.O. What
better way to express their outrage than through their art? An article in the
New York Times described their response.
When they got to Houston, people were just seeing for the rst time how they
were portrayed in the media, said Damien Randle, 31, a nancial adviser and one
half of the Legendary K.O. It was so upsetting for them to be up on a roof for two
days, with their kids in soiled diapers, and then see themselves portrayed as loot-
ers. In response, Mr. Randle and his partner, Micah Nickerson, wrote a rap based
on the stories of the people they were helping. On Sept. 6, Mr. Nickerson sent Mr.
Randle an instant message containing a music le and one verse, recorded on his
home computer. Mr. Randle recorded an additional verse and sent it back, and 15
minutes later it was up on their Web site: www.k-otix.com.
2
The song was called George Bush Doesnt Care About Black People (also
referred to as George Bush Doesnt Like Black People). Appropriately, given
that Mr. West was the one to come up with the phrase, the song was built
around Mr. Wests Gold Digger. Much of the melody was sampled directly
from the recording of that song. Yet the words were very different. Where
Gold Digger is about a predatory, sensual, and materialist woman who
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take[s] my money when Im in need and is a triin friend indeed, The
Legendary K.O.s song is a lyrical and profane condemnation of the response
to Katrina by both the government and the media. Here is a sample:
Five days in this motherf__ attic
Cant use the cellphone I keep getting static
Dying cause they lying instead of telling us the truth
Other day the helicopters got my neighbors off the roof
Screwed cause they say they coming back for us too
That was three days ago, I dont see no rescue
See a mans gotta do what a mans gotta do
Since God made the path that Im trying to walk through
Swam to the store, tryin to look for food
Corner stores kinda ooded so I broke my way through
I got what I could but before I got through
News say the police shot a black man trying to loot
(Who!?) Dont like black people
George Bush dont like black people
George Bush dont like black people
This chapter is the story of that song. George Bush Doesnt Care About
Black People is the end (for the moment) of a line of musical borrowing. That
borrowing extends far beyond Kanye Wests song Gold Digger. Gold Dig-
ger is memorable largely because it in turn borrows from an even older song,
a very famous one written half a century before and hailed by many as the birth
of soul music. It is in the origins of that song that we will start the trail.
I GOT A WOMAN
In 1955, Ray Charles Robinson, better known as Ray Charles, released a song
called I Got a Woman. It was a dening moment in Charless musical de-
velopment. Early in his career he had unashamedly modeled himself on Nat
King Cole.
I knew back then that Nat Cole was bigger than ever. Whites could relate to him
because he dealt with material they understood, and he did so with great feeling.
Funny thing, but during all these years I was imitating Nat Cole, I never thought
twice about it, never felt bad about copying the cats licks. To me it was practically
a science. I worked at it, I enjoyed it, I was proud of it, and I loved doing it. He was
a guy everyone admired, and it just made sense to me, musical and commercial
sense, to study his technique. It was something like when a young lawyerjust out
of schoolrespects an older lawyer. He tries to get inside his mind, he studies to
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see how he writes up all his cases, and hes going to sound a whole lot like the older
manat least till he gures out how to get his own shit together. Today I hear some
singers who I think sound like me. Joe Cocker, for instance. Man, I know that cat
must sleep with my records. But I dont mind. Im attered; I understand. After all,
I did the same thing.
3
In the early 50s Charles decided that he needed to move away from Coles
style and nd his own sound, sink, swim or die. But as with any musician,
his own sound was the product of a number of musical traditionsblues
and gospel particularly. It is out of those traditions that I Got a Woman
emerged; indeed it is that combination that causes it to be identied as one
of the birthplaces of soul music.
According to the overwhelming majority of sources, I Got a Woman
stems from a fairly overt piece of musical borrowingCharles reworded the
hymn Jesus Is All the World to Mesometimes referred to as My Jesus Is
All the World to Me.
Musically, soul denotes styles performed by and for black audiences according to
past musical practices reinterpreted and redened. During its development, three
performers played signicant roles in shaping its sound, messages, and perfor-
mance practice: Ray Charles, James Brown, and Aretha Franklin. If one can pin-
point a moment when gospel and blues began to merge into a secular version of
gospel song, it was in 1954 when Ray Charles recorded My Jesus Is All the World
to Me, changing its text to I Got A Woman.
4
That story is repeated in the biography on Charless Web site. Charles re-
worded the gospel tune Jesus Is All the World to Me adding deep church
inections to the secular rhythms of the nightclubs, and the world was never
the same.
5
Michael Lydon, Charless most impressive biographer, simply re-
ports that Jesus Is All the World to Me is described as the songs origin in
another published source,
6
and this origin is cited repeatedly elsewhere in
books, newspaper articles, and online,
7
though the most detailed accounts also
mention Renald Richard, Charless trumpeter, who is credited with co-writing
the song.
8
To secular ears, Jesus Is All the World to Me is a plodding piece of music
with a mechanical, up-and-down melodic structure. It conjures up a bored
(and white) church audience, trudging through the verses, a semitone at,
while thinking about Sunday lunch rather than salvation. It is about as far re-
moved as one could be from the syncopated beat and amorous subject matter
of I Got a Woman. The hymn was the product of Will Lamartine
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Thompsona severe-looking fellow with a faint resemblance to an elderly
Doc Hollidaywho died in 1909 and is buried in the same place he was born,
East Liverpool, Ohio. But the words have an earnestness to them that gives
life to the otherwise uninspired verse.
Jesus is all the world to me, my life, my joy, my all;
He is my strength from day to day, without Him I would fall.
When I am sad, to Him I go, no other one can cheer me so;
When I am sad, He makes me glad, Hes my Friend.
Reading those words, one can understand the sincerity that made Mr.
Thompson spurn commercial publishers for his devotional music, instead
founding his own publishing house (also in East Liverpool) to make sure that
his hymns reached the people. I can quote as much of the song as I want with-
out worrying about legal consequences because the copyright on Mr. Thomp-
sons lyrics has expired. So has the copyright over the music. The song was
published in 1904. Copyright had only been extended to musical composi-
tions in 1881. Like all copyrights back then, copyright over music lasted for
only twenty-eight years, with a possible extension for another fourteen. If Ray
Charles did indeed reword it fty years later, he was doing nothing illegal. It
had been in the public domain for at least eight years, and probably for
twenty. Now maybe Charless genius was to hear in this hymn, or in a synco-
pated gospel version of this hymn, the possibility of a fusion of traditions
which would itself become a new traditionsoul. Or perhaps his genius was
in knowing a good ideaRichardswhen he heard it, and turning that idea
into the beginnings of its own musical genre.
Soul is a fusion of gospel on the one hand and rhythm and blues on the
other. From gospel, soul takes the call-and-response pattern of preacher and
congregation and the wailing vocals of someone testifying to their faith.
From rhythm and blues it takes the choice of instruments, some of the upbeat
tempo, and the distinctly worldly and secular attitude to the (inevitable) trou-
bles of life. Musicologists delight in parsing the patterns of inuence further;
R&B itself had roots in jump music and the vocal style of the blues
shouters who performed with the big bands. It also has links to jazz. Gospel
reaches back to spirituals and so on.
As with all music, those musical traditions can be traced back or forward in
time, the net of inuence and borrowing widening as one goes in either direc-
tion. In each, one can point to distinctive musical motifsthe chords of the
twelve-bar blues, or the attened fth in bebop. But musical traditions are
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also dened by performance styles and characteristic sounds: the warm guitar
that came out of the valve ampliers of early funk, the thrashing (and poorly
miked) drums of 80s punk, or the tinny piano of honky-tonk. Finally, styles
are often built around standardsclassic songs of the genre to which an
almost obligatory reference is made. My colleague, the talented composer
Anthony Kelley, uses Henry Louis Gatess term signifyin to describe the
process of showing you are embedded in your musical tradition by referring
back to its classics in your playing. In jazz, for example, one demonstrates
ones rootedness in the tradition by quoting a standard, but also ones virtuos-
ity in being able to trim it into a particular eight-bar solo, beginning and end-
ing on the right note for the current moment in the chord progression. I Got
Rhythm and Round Midnight are such songs for jazz. (The chord changes
of I Got Rhythm are so standard, they are referred to as the rhythm
changesa standard basis for improvisation.) And to stretch the connections
further, as Kelley points out, the haunting introduction to Round Midnight
is itself remarkably similar to Sibeliuss Fifth Symphony.
Through all these layers of musical borrowing and reference, at least in the
twentieth century in the United States, runs the seam of race. When white
musicians borrowed from soul to make blue-eyed soul, when Elvis took
songs and styles from rhythm and blues and turned them into rockabilly, a
process of racial cleansing went on. Styles were adapted but were cleansed of
those elements thought inappropriate for a larger white audience. Generally,
this involved cutting some of the rawer sensuality, removing racially specic
verbal and musical references, and, for much of the century, cutting the
African-American artists out of the prots in the process.
There is another irony here. Styles formed by patterns of gleeful borrowing,
formed as part of a musical commonsthe blues of the Mississippi Delta, for
examplewere eventually commercialized and frozen into a particular form
by white artists. Sometimes those styles were covered with intellectual prop-
erty rights which denied the ability of the original community to borrow
back. In the last thirty or forty years of the century, African-American artists
got into the picture too, understandably embracing with considerable zeal the
commercial opportunities and property rights that had previously been de-
nied to them. But aside from the issue of racial injustice, one has to consider
the question of sustainability.
In other work, I have tried to show how a vision of intellectual property
rights built around a notion of the romantic author can sometimes operate as
a one-way valve vis--vis traditional and collective creative work.
8
There is a
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danger that copyright will treat collectively created musical traditions as un-
owned raw material, but will then prevent the commercialized versions of
those traditionsnow associated with an individual artistfrom continuing
to act as the basis for the next cycle of musical adaptation and development.
One wonders whether jazz, blues, R&B, gospel, and soul would even have
been possible as musical styles if, from their inception, they had been covered
by the strong property rights we apply today. That is a question I want to re-
turn to at the end of this chapter.
Musical styles change over time and so do their techniques of appropria-
tion. Sometimes musical generations nd their successors are engaging in dif-
ferent types of borrowing than they themselves engaged in. They do not always
nd it congenial. It is striking how often musicians condemn a younger gen-
erations practice of musical appropriation as theft, while viewing their own
musical development and indebtedness as benign and organic. James Brown
attacked the use of his guitar licks or the drum patterns from his songs by hip-
hop samplers, for example, but celebrated the process of borrowing from
gospel standards and from rhythm and blues that created the Hardest Work-
ing Man in Show Businessboth the song and the musical persona. To be
sure, there are differences between the two practices. Samplers take a three-
second segment off the actual recording of Funky Drummer, manipulate it,
and turn it into a repeating rhythm loop for a hip-hop song. This is a differ-
ent kind of borrowing than the adaptation of a chord pattern from a gospel
standard to make an R&B hit. But which way does the difference cut as a
matter of ethics, aesthetics, or law?
Charles himself came in for considerable criticism for his fusion of gospel
intonations and melodic structures with the nightclub sound of rhythm and
blues, but not because it was viewed as piracy. It was viewed as sacrilegious.
Charles totally removed himself from the polite music he had made in the past.
There was an unrestrained exuberance to the new Ray Charles, a erce earthiness
that, while it would not have been unfamiliar to any follower of gospel music, was
almost revolutionary in the world of pop. Big Bill Broonzy was outraged: Hes
crying, sanctied. Hes mixing the blues with the spirituals. He should be singing
in a church.
10
Charles disagreed. You cant run away from yourself. . . . What you are in-
side is what you are inside. I was raised in the church and was around blues
and would hear all these musicians on the jukeboxes and then I would go to
revival meetings on Sunday morning. So I would get both sides of music. A
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lot of people at the time thought it was sacrilegious but all I was doing was
singing the way I felt.
11
Why the charge of sacrilege? Because beyond the
breach of stylistic barriers, the relationships Charles described did not seem
to belong in church.
I Got a Woman tells of a woman, way over town, who is good to the
singervery good, in fact. She gives him money when he is in need, is a kind
of friend indeed, even saves her early morning loving just for him (and it is
tender loving at that). In the third verse we learn she does not grumble, fuss,
or run in the streets, knows a womans place is right there now in the home,
and in general is a paragon of femininity. Gender roles aside, it is a fabulous
song, from the elongated We-e-ell . . . in Charless distinctive tones, to the
momentary hesitation that heightens the tension, all the way through the
driving beat of the main verses and the sense that a gospel choir would have t
right in on the choruses, testifying ecstatically to the virtues of Charless lady
friend. Charles liked womena lot of women, according to his biographers
and a lot of women liked him right back. That feeling comes through very
clearly from this song.
I would like to quote the song lyrics for you, just as I did the words of the
hymn, but that requires a little more thought. Charless song was released in
1955. By that time, the copyright term for a musical composition was twenty-
eight years, renewable for another twenty-eight if the author wished. (Later,
the twenty-eight-year second term would be increased to forty-seven years. Still
later, the copyright term would be extended to life plus seventy years, or
ninety-ve years for a work for hire. Sound recordings themselves would not
be protected by federal law until the early 1970s.) Anyone who wrote or dis-
tributed a song under the 28 +28 system was, in effect, saying this is a long
enough protection for me, enough incentive to create. Thus, we could have
assumed that I Got a Woman would enter the public domain in either 1983
or, if renewed, 2011. Unfortunately for us, and for a latter-day Ray Charles, the
copyright term has been extended several times since then, and each time it
was also extended retrospectively. Artists, musicians, novelists, and lmmakers
who had created their works on the understanding that they had twenty-eight
or fty-six or seventy-ve years of protection now have considerably more.
This was the point raised in Chapter 1. Most of the culture of the twentieth
century, produced under a perfectly well-functioning system with much
shorter copyright terms, is still locked up and will be for many years to come.
In the case of I Got a Woman, it is now about fty years since the songs
releasethe same length of time as between Thompsons hymn and Charless
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alleged rewording. If the words and music were properly copyrighted at the
time of its publication, and renewed when appropriate, the copyright still has
forty-ve years to run. No one will be able to reword I Got a Woman and
use it to found a new genre, or take substantial portions of its melody, until
the year 2050. The freedoms Ray Charles says he used to create his song are
denied to his successors until nearly a century after the songs release. (As we
will see in a moment, this put certain constraints on Kanye West.)
Would it truly be a violation of copyright for me to quote the middle
stanza in a nonction book on copyright policy? Not at all. It is a classic fair
use. In a moment I will do so. But it is something that the publisher may
well fuss over, because copyright holders are extremely aggressive in asking for
payments for the slightest little segment. Copyright holders in music and
song lyrics are among the most aggressive of the lot. Year after year academics,
critics, and historians pay fairly substantial fees (by our standards) to license
tiny fragments of songs even though their incorporation is almost certainly
fair use. Many of them do not know the law. Others do, but want to avoid the
hassle, the threats, the nasty letters. It is simpler just to pay.
Unfortunately, these individual actions have a collective impact. One of the
factors used to consider whether something is a fair use is whether or not there
is a market for this particular use of a work. If there is, it is less likely to be a fair
use to quote or incorporate such a fragment. As several courts have pointed out,
there is a powerful element of circularity here. You claim you have a right to stop
me from doing xquoting two lines of your three-verse song in an academic
book, say. I say you have no such right and it is a fair use. You say it is not a fair
use because it interferes with your marketthe market for selling licenses for
two-sentence fragments. But when do you have such a market? When you have
a right to stop me quoting the two-sentence fragment unless I pay you. Do you
have such a right? But that is exactly what we are trying to decide! Is it a fair use
or not? The existence of the market depends on it not being a fair use for me to
quote it without permission. To say I would have a market if I could stop you
doing it, so it cannot be a fair use, so I can stop you is perfectly circular.
How do we get out of the circle? Often the court will look to customs and
patterns in the world outside. Do people accept this as a market? Do they tra-
ditionally pay such fees? Thus, if a lot of people choose to pay for quotes that
actually should have been fair use, the market for short quotes will begin to
emerge. That will, in turn, affect the boundaries of fair use for the worse.
Slowly, fair use will constrict, will atrophy. The hypertrophied permissions
culture starts as myth, but it can become reality.
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In any event, Ray Charles had no need of fair use to make I Got a
Woman because the hymn his biography claims it is based on was in the
public domain. But is that the real source? I can hear little resemblance. As
I researched the origins of I Got a Woman, I found claims that there was
a different source, a mysterious song by the Bailey Gospel Singers, or the
Harold Bailey Gospel Singers, called Ive Got a Savior.
12
The Columbia
Records gospel catalogue even provided a catalogue number.
13
There was such
a song, or so it seemed. But there the research stalled. The exemplary librari-
ans at Duke University Music Library could nd no trace. Catalogues of pub-
lished records showed nothing. Inquiries to various music librarian listservs
also produced no answer. There was a man called Harold Bailey, who sang
with a group of gospel singers, but though several Internet postings suggested
he was connected to the song, his biography revealed he would have been only
thirteen at the time. The Library of Congress did not have it. Eventually, Jordi
Weinstocka great research assistant who demonstrated willingness to pester
anyone in the world who might conceivably have access to the recordinghit
gold. The Rodgers and Hammerstein Archives of Recorded Sound at the New
York Public Library for the Performing Arts had a copya 78 rpm vinyl
record by the Bailey Gospel Singers with Jesus Is the Searchlight on the
B-side. Our library was able to obtain a copy on interlibrary loan from the
helpful curator, Don McCormick.
It sounds like the same song. Not the same words, of course: the introduc-
tion is different and the Bailey Gospel Singers lack the boom-chicky-boom
backing of Charless version, but the central melody is almost exactly the
same. When the Bailey Gospel Singers sing Keeps me up / Keeps me strong /
Teach me right / When I doing wrong / Well, Ive got a savior / Oh what a
savior / yes I have, the melody, and even the intonation, parallel Charles
singing the equivalent lines: She gimme money / when Im in need / Yeah
shes a kind of / friend indeed / Ive got a woman / way over town / whos
good to me.
True, some of the lyrical and rhythmic patterns of Ive Got a Savior are
older still. They come from a spiritual called Aint That Good News, dating
from 1940, which rehearses all the things the singer will have in the Kingdom
of Heavena harp, a robe, slippers (!), and, nally, a savior. The author of
Ive Got a Savior was, like all the artists discussed here, taking a great deal
from a prior musical tradition. Nevertheless, Charless borrowing is particu-
larly overt and direct. The term rewording is appropriate. So far as I can see,
whether or not he also relied on a fty-year-old hymn, Ray Charles appears to
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have taken both the melody and lyrical pattern of his most famous hit from a
song that was made a mere three or four years earlier.
Like many 78 rpm records, this one was sold without liner notes. The cen-
ter of the record provides the only details. It gives the name of the track and
the band and a single word under the song title, Wardpresumably the
composer. Ward might be Clara Ward of the Ward Singers, a talented gospel
singer and songwriter who became Aretha Franklins mentor and who had her
own music publishing company.
There is a particular reason to think that she might have written the song:
Ray Charles clearly liked to adapt her music to secular ends. We know that he
reworked Wards gospel classic This Little Light of Mine into This Little
Girl of Mine. Ward reportedly was irritated by the practice. So far as we
know, the copying of the music did not annoy her because she viewed it as
theft, but because she viewed it as an offense against gospel music.
Charles is now starting to get criticism from some gospel music performers for sec-
ularizing gospel music and presenting it in usual R&B venues. Most adamant in
her misgivings is Clara Ward who complains about This Little Girl Of Mine be-
ing a reworking of This Little Light Of Mine (which it is), as a slap against the
gospel eld.
14
This stage of Charless career is described, rightly, as the moment when his
originality bursts forth, where he stops imitating the smooth sounds of Nat
King Cole and instead produces the earthy and sensual style that becomes his
trademarkhis own sound. That is true enough; there had been nothing
quite like this before. Yet it was hardly original creation out of nothing. Both
Charles himself and the musicological literature point out that his own
sound, his style, is in reality a fusion of two prior genresrhythm and
blues and gospel. But looking at the actual songs that created soul as a genre
shows us that the fusion goes far beyond merely a stylistic one. Charles makes
some of his most famous songs by taking existing gospel classics and rework-
ing or simply rewording them. Ive Got a Savior becomes I Got a
Woman. This Little Light of Mine becomes This Little Girl of Mine.
The connection is striking: two very recent gospel songs, probably by the
same author, from which Charles copies the melody, structure, pattern of
verses, even most of the titlein each case substituting a beloved sensual
woman for the beloved deity. Many others have noticed just how closely
Charles based his songs on gospel tunes, although the prevalence of the story
that I Got a Woman is derived from an early-twentieth-century hymn
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caused most to see only the second transposition, not the rst.
15
Borrowing
from a fty-year-old hymn and changing it substantially in the process seems
a little different from the repeated process of search and replace musical col-
lage that Charles performed on the contemporary works of Clara Ward.
If I am right, Charless merger of gospel and blues relied on a very direct
process of transposition. The transposition was not just of themes: passion for
woman substituted for passion for God. That is a familiar aspect of soul.
16
It
is what allows it to draw so easily from gospels eriness and yet coat the reli-
gion with a distinctly more worldly passion. Sex, sin, and syncopationwhat
more could one ask? But Charless genius was to take particular songs that had
already proved themselves in the church and on the radio, and to grab large
chunks of the melody and structure. He was not just copying themes, or
merging genres, he was copying the melodies and words from recent songs.
Was this mere musical plagiarism, then? Should we think less of Ray
Charless genius because we nd just how closely two of the canonical songs
in the creation of soul were based on the work of his contemporaries? Hardly.
I Got a Woman and This Little Girl of Mine are simply brilliant. Charles
does in fact span the worlds of the nightclub at 3 a.m. on Sunday morning
and the church later that day, of ecstatic testimony and good old-fashioned
sexual infatuation. But the way he does so is a lot more like welding, or brico-
lage, than it is like designing out of nothing or creating anew while distantly
tugged by mysterious musical forces called themes or genres. Charles takes
bits that have been proven to work and combines them to make something
new. When I tell engineers or software engineers this story, they nod. Of
course that is how creation works. One does not reinvent the wheel, or the
method of debugging, so why should one reinvent the hook, the riff, or the
melody? And yet Charless creation does not have the degraded artistic quality
that is associated with mere cut-and-paste or collage techniques. The com-
bination is greater than the sum of its parts. If Charless songs do not t our
model of innovative artistic creativity, perhaps we need to revise the model
at least for musicrather than devaluing his work.
When I began this study, it seemed to me that the greatest challenge to
copyright law in dealing with music was preventing rights from creeping,
expanding from coverage of a single song or melody to cover essential elements
of genre, style, and theme. In effect, we needed to apply the Jefferson Warn-
ing to music, to defeat the constant tendency to confuse intellectual property
with real property, and to reject the attempts to make the right holders con-
trol total. My assumption was that all we needed to do was to keep open the
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common space of genre and style, and let new artists create their new com-
positions out of the material in that commons and gain protection over them.
In many ways, Charless work lies at the very core of the stuff copyright wishes
to promote. It is not merely innovative and expressive itself, it also helped
form a whole new genre in which other artists could express themselves. But
to create this work, Charles needed to make use of a lot more than just genres
and styles created by others. He needed their actual songs. If the reactions of
Clara Ward and Big Bill Broonzy are anything to go by, they would not have
given him permission. To them, soul was a stylistic violation, a mingling of
the sacred with the profane. If given a copyright veto over his work, and a cul-
ture that accepts its use, Ward might well have exercised it. Like the disap-
proving heirs that Macaulay talked about, she could have denied us a vital
part of the cultural record. Control has a price.
Did Ray Charles commit copyright infringement? Perhaps. We would have
to nd if the songs are substantially similar, once we had excluded standard
forms, public domain elements, and so on. I would say that they are substan-
tially similar, but was the material used copyright-protected expression?
The Copyright Ofce database shows no entry for Ive Got a Savior. This
is not conclusive, but it seems to indicate that no copyright was ever registered
in the work. In fact, it is quite possible that the song was rst written without
a copyright notice. Nowadays that omission would be irrelevant. Works are
copyrighted as soon as they are xed in material form, regardless of whether
any copyright notice is attached. In 1951, however, a notice was required when
the work was published, and if one was not put on the work, it passed imme-
diately into the public domain. However, later legislation decreed that the rel-
evant publication was not of the record, but of the notation. If the record were
pressed and sold without a copyright notice, the error could be corrected. If a
lead sheet or a sheet music version of Ive Got a Savior had been published
without notice or registration, it would enter the public domain. It is possible
that this happened. Intellectual property rights simply played a lesser role in
the 1950s music business than they do today, both for better and for worse.
Large areas of creativity operated as copyright-free zones. Even where copy-
rights were properly registered, permission fees were not demanded for tiny
samples. While bootlegged recordings or direct note-for-note copies might
well draw legal action, borrowing and transformation were apparently viewed
as a normal part of the creative process. In some cases, artists simply did not
use copyright. They made money from performances. Their records might re-
ceive some kind of protection from state law. These protections sufced.
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But the lack of protection also had a less attractive and more racially
skewed side. African-American artists were less likely to have the resources
and knowledge necessary to navigate the system of copyright. For both black
and white artists, whatever rights there were moved quickly away from the ac-
tual creators toward the agents, record companies, and distributors. They still
do. But African-American musicians got an even worse deal than their white
counterparts. True, the copyright system was only an innitesimal part of that
process. A much larger part was the economic consequences of segregation
and racial apartheid. But copyright was one of the many levers of power that
were more easily pulled by white hands. This is an important point because
the need to end that palpable racial injustice is sometimes used to justify every
aspect of our current highly legalized musical culture. About that conclusion,
I am less convinced.
In any event, it is possible that the musical composition for Ive Got a
Savior went immediately into the public domain. If that were the case, Ray
Charles could draw on it, could change it, could rene it without permission
or fee. Certainly there is no mention of seeking permission or paying fees in
any of the histories of I Got a Woman. Indeed, the only question of rectitude
Charles was focused on was the stylistic one. Was it appropriate to mix gospel
and R&B, devotional music and secular desire? Charles and Richard seemed to
see the process of rewording and adapting as just a standard part of the musi-
cians creative process. The only question was whether these two styles were
aesthetically or morally suited, not whether the borrowing itself was illegal or
unethical. So, whether they drew on a hymn that had fallen into the public
domain after the expiration of its copyright term, or a gospel song for which
copyright had never been sought, or whether they simply took a copyrighted
song and did to it something that no one at the time thought was legally inap-
propriate, Renald Richard and Ray Charles were able to create I Got a
Woman and play a signicant role in founding a new musical genresoul.
One thing is clear. Much of what Charles and Richard did in creating their
song would be illegal today. Copyright terms are longer. Copyright protection
itself is automatic. Copyright policing is much more aggressive. The musical
culture has changed into one in which every fragment must be licensed and
paid for. The combination is fatal to the particular pattern of borrowing that
created these seminal songs of soul.
That should give us pause. I return to the ideas of the Jefferson Warning
from Chapter 2 and the Sony Axiom from Chapter 4. Copyright is not an end
in itself. It has a goal: to promote the progress of cultural and scientic
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creativity. That goal requires rights that are less than absolute. As Jessica Lit-
man points out, building in the intellectual space is different from building in
the physical space. We do not normally dismantle old houses to make new
ones. This point is not conned to music. Earlier I quoted Northrop Frye:
Poetry can only be made out of other poems; novels out of other novels. All
of this was much clearer before the assimilation of literature to private enter-
prise.
17
The question is, how big are the holes we need to leave in the private
rights? How large a commons do we need to offer to future creators?
Ray Charless creation of I Got a Woman is only one case. By itself, it
proves nothing. Yet, if we nd that the seminal, genre-creating artworks of
yesteryear would be illegal under the law and culture of today, we have to ask
ourselves is this really what we want? What will the music of the future look
like if the Clara Wards and Will Lamartine Thompsons of today can simply
refuse to license on aesthetic grounds or demand payment for every tiny frag-
ment? Tracing the line further back, it is fascinating to wonder whether
gospel, blues, and jazz would have developed if musical motifs had been jeal-
ously guarded as private property rather than developed as a kind of melodic
and rhythmic commons. Like most counterfactuals, that one has no clear
answer, but there is substantial cause for skepticism. If copyright is supposed
to be promoting innovation and development in culture, is it doing its job?
AN INDUSTRY OF GOLD DIGGERS?
Fifty years after I Got a Woman was written, Kanye West released Gold
Digger on the album Late Registration. Mr. West is an interesting gure in
rap. At rst he was shunned because his clean-cut looks and preppy clothing
ran against the gangster image that often dominates the music. It is just hard
imagining Mr. West delivering a line like Rakims I used to be a stick-up kid,
so I think of all the devious things I did with a straight face. (Still less Stop
smiling, aint nothin funny, nothing moves but the money.) Perhaps partly
as a result, his lyrics are oddly bipolar in their views about exaggerated mas-
culinity and the misogyny that sometimes accompanies it.
For the song, Mr. West recruited Jamie Foxx, who had played Ray Charles in
the movie Ray. Showing an impressive expanse of oiled chest, Mr. Foxx imi-
tates Charless style and the melody of I Got a Woman to provide the lyrical
chorus to Gold Digger. I Got a Woman anchors Wests song. It provides
its melodic hook. It breaks up the rap with a burst of musical nostalgia. But
Mr. Wests gold digger is very different from Ray Charless woman friend.
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This woman does not give money when the singer is in need. She takes his
money when he is in need and is a triin friend indeed. Mr. Charles had a
friend who gave him tender morning loving. Jamie Foxx sings of a mercenary
gold digger who digs on him. When Mr. West adds the rap verses to the song,
we get a perfect caricature of such a person, uninterested in any man who is
broke, dragging around four kids and an entourage, insisting all of them be en-
tertained at her boyfriends expense, and wielding unfounded paternity suits
like a proprietary business method. Mr. Wests repeated disclaimer I aint sayin
shes a gold digger is unconvincing, because both the words of the introduction
and the implicit message of the rap tell us she is. We even get the absurd image
of a man who is playing on the winning side in the Super Bowl but driving a
Hyundai, so nancially demanding is his girlfriend. At several points the song
descends into ludicrousand perhaps consciousself-mockery, as it explores
the concerns of the rich African-American celebrity male. My favorite line is If
you aint no punk, holler We want prenup!! The audience obliges. It sounds
like assertiveness training for show business millionaires.
It would be hard to get a feminist role model out of either I Got a Woman
or Gold Digger. One offers the feminine virtues of modesty and delity, but
magically combines them with wantonness where the singer is concerned and
an open checkbook. The other is a parody of the self-assertive economic actor,
as rapacious as any multinational, who uses her sexuality for prot. Put them
together and you have bookendsmale fantasy and male nightmare. Was that
Mr. Wests point? Perhaps. The song itself takes several sly turns. The gold dig-
ger dogging Mr. West is used as part of a homily to black women on how to
treat their (noncelebrity) black men. They should stick with their man because
his ambition is going to take him from mopping oors to the fryers, from a
Datsun to a Benz. It seems that Mr. West is getting a little preachy, while slam-
ming the actual social mobility available to black men. Moving from oor
cleaning to frying chicken is not actually going to provide a Mercedes. But he
immediately undercuts that tone twice, once by acknowledging the boyfriends
likely indelity and again by saying that even if the black woman follows his
homily, once you get on, he leave yo ass for a white girl.
Mr. West has a tendency to make sudden turns like this in his lyrics
ironically upsetting the theme he has just set up. So it is not hard to imagine
that he deliberately used a fragment of Charless song, not just because it
sounded good but to contrast the image of the fantasy woman from Charless
1950s soul, who is faithful, sensual, and always willing to offer a loan, with an
image from todays rapsexually predatory and emasculating women who
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are uninterested in men except as a source of money. Even the retro cover of
the single, with its 1950s-style pinup drawing of a white model, seems to draw
the connection. Did he use Charless song precisely because of these clashing
cultural snapshots? Perhaps, or perhaps he just liked the tune. In any event,
the contrast is striking. When it was released, Charless song was seen as a
sacrilegious depiction of sensuality and the woman was decried as a harlot.
Compared to the woman in Mr. Wests song, she sounds like a Girl Scout. It is
also a little depressing. Ray Charles was neither an egalitarian metrosexual nor
a Prince Charming where women were concernedanything but. But as I said
before, you do get a sense that he liked womenhowever unrealistic or two-
dimensional their portrayal. It is hard to get that sense from Gold Digger.
Was Mr. West legally required to ask permissionand pay, if necessary
to use a fragment of I Got a Woman for his chorus? The longest single piece
of borrowing occurs in the introduction: twenty-six words and their accom-
panying music. She takes my money, when Im in need, oh shes a triin
friend indeed. Oh shes a gold digger, way over town, who digs on me. As I
pointed out, the lyrics from Charless song present a very different story. She
gimme money / when Im in need / Yeah shes a kind of / friend indeed / Ive
got a woman / way over town / whos good to me. But even if the message is
the opposite, the musical borrowing is direct. It is also extensive. During Mr.
Wests rap, the entire background melody is a loop of Jamie Foxx singing the
Ray Charles-inspired melody in the background. During the song, Mr. Foxx
returns to words that are closer to Charless original: She gimme money,
when Im in need, a refrain that is conspicuously at odds with the woman
being described by Mr. West. That eight-bar loop of a Ray Charles melody
runs throughout Kanye Wests song.
Mr. West is very successful, so the fragment of the song was cleared
payment was made to Charless estate. It is fascinating to think of what might
have happened if Charless heirs had refused. After all, one could see Wests
song as a crude desecration of Charless earlier work, rather than a good-
humored homage. Since this is not a cover version of the songone which
does not change its nature and thus operates under the statutory licensing
schemeCharless heirs would have the right to refuse a licensing request.
Unlike Clara Ward, it is clear that Charless heirs have the legal power to say
no, to prevent reuse of which they disapprove.
Was West legally required to license? Would all this amount to a copyright
violation? It is worth running through the analysis because it gives a beautiful
snapshot of the rules with which current law surrounds musical creation.
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Today, a song is generally covered by at least two copyrights. One covers
the musical compositionthe sheet music and the lyricsand the other the
particular sound recording of that composition. Just as there are two kinds of
copyrights, so there are at least two kinds of borrowings that copyright might
be concerned with. First, one musical composition might infringe another.
Thus, for example, a court found that George Harrison subconsciously
based his song My Sweet Lord on the melody of Hes So Fine by the
Chiffons.
How much does it take to infringe? That is a difcult question. The laws
standard is substantial similarity, but not every kind of similarity counts.
Minimal or de minimis copying of tiny fragments is ignored. Certain styles or
forms have become standards; for example, the basic chord structure of the
twelve-bar blues or the habit of introducing instruments one at a time, from
quietest to loudest. There are only so many notesand so many ways to re-
arrange them; inevitably any song will be similar to some other. Yet that can-
not mean that all songs infringe copyright. Finally, even where there is
substantial similarity of a kind that copyright is concerned with, the second
artist may claim fair usefor parody or criticism, say. Copyright law, in
other words, has tried to solve the problem with which I began the chapter.
Because much of musical creativity is organic and collective and additive, be-
cause it does use prior musical expression, some copyright decisions have tried
to carve out a realm of freedom for that creativity, using doctrines with names
such as scnes faire, merger, and fair use. This is yet another example of
judges trying to achieve the balance that this book is all aboutbetween the
realm of the protected and the public domainrecognizing that it is the bal-
ance, not the property side alone, that allows for new creativity.
The second type of potential infringement comes when someone uses a
fragment of the earlier recording as part of the later one, actually copying a
portion of the recording itself and using it in a new song. One might imagine
the same rules would be appliedde minimis copying irrelevant, certain stan-
dard forms unprotected, and so on. And one would be wrong. In a case called
Bridgeport Music, which I will discuss in a moment, the Court of Appeals ruled
that taking even two notes of a musical recording counts as potentially ac-
tionable copying. Where recordings are concerned, in other words, there is al-
most no class of copying so minimal that the law would ignore it. This is a
terrible decision, at least in my opinion, likely to be rejected by other Circuits
and perhaps even eventually by the Supreme Court. But for the moment, it is
a case that samplers have to deal with.
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How does Kanye West fare under these rules? He may sample from the
actual recording of Mr. Charless song. It is hard to tell. He certainly copies
portions of the melody. That means we have to look at the copyright in the
musical compositionthe words and the music of I Got a Woman. For a
copyright infringement, one needs a valid copyright and evidence of copying,
the amount copied needs to be more than an insignicant fragment, substan-
tial similarity is required, and the similarity has to be between the new work
and the elements of the original that are actually protected by copyright. Ele-
ments taken from the public domain, standard introductions, musical clichs,
and so forth, do not get included in the calculation of similarity. Finally, the
copier can claim fair usethat his borrowing is legally privileged because it
is commentary, criticism, parody, and so on.
Does Charles, or his record company, have a valid copyright in the musical
composition? One huge problem in copyright law is that it is remarkably hard
to nd this out. Even with the best will in the world, it is hard for an artist,
musician, or teacher to know what is covered by copyright and what is not.
Nowadays, all works are copyrighted as soon as they are xed, but at the time
I Got a Woman was written one had to include a copyright notice or the
song went immediately into the public domain. The Copyright Ofce data-
base shows no copyright over the words and music of I Got a Woman.
There are copyrights over a variety of recordings of the song. If Mr. West is
using a fragment of the recording, these would affect him. But the melody? It
is possible that the underlying musical composition is in the public domain.
Finding out whether it is or is not would probably cost one a lot of money.
Suppose that Mr. Charles has complied with all the formalities. The words
and music were published with a copyright notice. A copyright registration
was led and renewed. Does Mr. West infringe this copyright? That is where
the discovery of the Bailey Gospel Singers recording is potentially so important.
Charles only gets a copyright in his original creation. Those elements taken
from the public domain (if Ive Got a Savior was indeed in the public do-
main) or from other copyrighted songs do not count. The irony here is that
the elements that Kanye West borrows from Ray Charles are almost exactly
the same ones Ray Charles borrows from the Bailey Gospel Singers. Ive got
a savior, Oh what a savior becomes I got a woman, way over town becomes
Theres a Gold Digger, way over town. And of course, the music behind
those words is even more similar. When The Legendary K.O. reached for
Kanye Wests song in order to criticize Mr. Bush, they found themselves sam-
pling Jamie Foxx, who was copying Ray Charles, who was copying the Bailey
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Gospel Singers, who themselves may have borrowed their theme from an
older spiritual.
GEORGE BUSH DOESNT CARE . . .
Five damn days, ve long days
And at the end of the fth he walking in like Hey!
Chilling on his vacation, sitting patiently
Them black folks gotta hope, gotta wait and see
If FEMA really comes through in an emergency
But nobody seem to have a sense of urgency
Now the mayors been reduced to crying
I guess Bush said, Ns been used to dying!
He said, I know it looks bad, just have to wait
Forgetting folks was too broke to evacuate
Ns starving and they dying of thirst
I bet he had to go and check on them reneries rst
Making a killing off the price of gas
He would have been up in Connecticut twice as fast . . .
After all that weve been through nothings changed
You can call Red Cross but the fact remains that . . .
George Bush aint a gold digger,
but he aint fing with no broke ns
George Bush Doesnt Care About Black People, The Legendary K.O.
The song George Bush Doesnt Care About Black People was an immedi-
ate sensation. Hundreds of thousands of people downloaded it. Within days
two different video versions had been made, one by Franklin Lopez and an-
other by a lmmaker called The Black Lantern. Both synchronized the
lyrics of the song with news clips of the disaster and unsympathetic footage
of President Bush apparently ignoring what was going on. The effect was
both hilarious and tragic. The videos were even more popular than the song
alone. The blogosphere was fascinatedentries were posted, e-mails circu-
lated to friends with the usual you have to see this! taglines. In fact, the
song was so popular that it received the ultimate recognition of an Internet
fad: the New York Times wrote a story on it, setting the practice in historical
context.
In the 18th century, songwriters responded to current events by writing new lyrics
to existing melodies. Benjamin Franklin used to write broadside ballads every time
a disaster struck, said Elijah Wald, a music historian, and sell the printed lyrics in
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the street that afternoon. This tradition of responding culturally to terrible events
had almost been forgotten, Mr. Wald said, but in the wake of Hurricane Katrina,
it may be making a comeback, with the obvious difference that, where Franklin
would have sold a few song sheets to his fellow Philadelphians, the Internet allows
artists today to reach the whole world.
18
Mr. Nickersons and Mr. Randles song started with Kanye Wests words
taken from the fundraiser with Mike Myers. George Bush doesnt care about
black people. From there it launched into the song. The background melody
comes almost entirely from a looped, or innitely repeated, version of the
hook that Kanye West and Jamie Foxx had in turn taken from Ray Charles:
She gimme money, when Im in need. I gotta leave. Against that back-
ground, The Legendary K.O. provide their profane and angry commentary,
part of which is excerpted above, with a chorus of George Bush dont like
black people, in case anyone had missed the point.
The videos differ in the issues they stress. Franklin Lopezs movie is, rather
pointedly given its theme, just black and white. He uses ornate captions pages,
reminiscent of silent lm from the 1920s, to make political points against the
background of the song and the news footage. As the captions read Katrina
Rapidly Approaches, we cut to a shot of the hurricane. The President Ponders
on What to Do. We have a shot of Mr. Bush playing golf. I Think Ill Ride
This One Out. Mr. Bush is shown relaxing on a golf cart, juxtaposed against
pictures of African-Americans wading through the oods. The captions add,
as an afterthought, And Keep Dealing with the Brown People. (Pictures of
soldiers shooting.) When FEMAs Michael Brown is shownat the moment
when Bush said Brownie, you are doing a hell of a jobthe captions com-
ment mockingly, The Horse Judge to the Rescue.
Mr. Lopezs video obviously tries to use The Legendary K.O.s song to
make larger political arguments about the country. For example, it asserts that
in 2004 Bush diverted most of the funds for the levees to the war in Iraq.
Scenes reminiscent of a Michael Moore documentary are shown. There are
pictures of the Iraq war, Halliburton signs, and shots of the president with a
member of the Saudi royal family. The captions accuse the president of show-
ing insensitivity and disdain to racial minorities. One summarizes the general
theme: Since he was elected president, George Bushs policies have been less
than kind toward Africans and Hispanics. Issues ranging from the response
to the Darfur massacres, No Child Left Behind, and the attempted privati-
zation of Social Security also make their appearance. The video concludes by
giving the donation information for the Red Cross and saying that we are
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onto Bush. A picture of a Klansman removing his hood is shown, with the
image manipulated so that the face revealed is Mr. Bushs.
The Black Lanterns video is just as angry, and it uses some of the same
footage, but the themes it picks up are different. It starts with a logo that
parodies the FBI copyright warning shown at the beginning of movies:
WARNING: Artist supports lesharing. Please distribute freely. That dis-
solves into a picture of Kanye West and Mike Myers. West is speaking, some-
what awkwardly as he goes off script, and at rst Mr. Myers is nodding,
though he starts to look increasingly worried. West says, I hate the way they
portray us in the media. You see a black family it says they are looting. You see
a white family, it says they are looking for food. Finally, West says George
Bush doesnt care about black people and the camera catches Myerss mute,
appalled reaction. Then the song begins. The lm cuts repeatedly between a
music video of Mr. Foxx as he sang the lines for Gold Digger and the news
coverage of the debacle in New Orleans. At one point the music pauses and a
news anchor says, You simply get chills when you look at these people. They
are so poor. And so black. The song resumes. Here the message is simpler.
The media coverage is biased and governmental attention slowed because of
negative racial stereotypes and lack of concern about black people.
Some readers will nd that this song and these videos capture their own
political perspectives perfectly. They will love the bitterly ironic and obscene
outrage at the governments failure, the double standards of the press, and the
disproportionate and callously disregarded impact on the poor and black.
Others will nd both song and lms to be stupid, insulting, and reductionist
an attempt to nd racial prejudice in a situation that, at worst, was an exam-
ple of good old-fashioned governmental incompetence. Still others will nd
the language just too off-putting to even think about the message. Whatever
your feelings about the content, I urge you to set them aside for a moment.
For better or worse, Mr. Bush just happened to be president at the moment
when the Internet was coming into its own as a method of distributing dig-
itally remixed political commentary, which itself has recently become some-
thing that amateurs can do for pennies rather than an expensive activity reserved
to professionals. The point is that whatever rules we apply to deal with George
Bush Doesnt Care About Black People will also apply to the next video that
alleges corruption in a Democratic administration or that attacks the sacred
cows of the left rather than the right. How should we think about this kind of
activity, this taking the songs and lms and photos of others and remixing
them to express political, satirical, parodic, or simply funny points of view?
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SAMPLING
Let us begin with the music. Unlike the other songs I have discussed here,
with the possible exception of Mr. Wests, George Bush Doesnt Care About
Black People makes use of digital samples of the work of others. In other
words, this is not merely about copying the tune or the lyrics. The reason that
Mr. Nickerson and Mr. Randle could make and distribute this song so fast
(and so cheaply) is that they took fragments from the recording of Gold Dig-
ger and looped them to form the background to their own rap. That was also
part of the reason for the positive public reaction. Kanye West (and Ray
Charles and Clara Ward) are very talented musicians. Wests song was already
all over the airwaves. The Legendary K.O. capitalized on that, just as Ben-
jamin Franklin capitalized on the familiarity of the songs he reworded. But
where Franklin could only take the tune, The Legendary K.O. could take the
actual ones and zeros of the digital sound le.
As I mentioned earlier, there are two types of copyright protection over
music. There is the copyright over the musical composition and, a much more
recent phenomenon, the copyright over the actual recording. This song po-
tentially infringes both of them.
Readers who came of age in the 1980s might remember the music of Public
Enemy and N.W.A.a dense wall of sound on which rap lyrics were overlaid.
That wall of sound was in fact made up of samples, sometimes hundreds of
tiny samples in a single track. Rap and hip-hop musicians proceeded under the
assumption that taking a fragment of someone elses recording was as accept-
able legally (and aesthetically) as a jazz musician quoting a fragment of another
tune during a solo. In both cases, the use of quotation is a dening part of
the genre, a harmless or even complimentary homage. Or so they thought.
In a 1991 case called Grand Upright, that idea was squashed.
19
The rap artist
Biz Markie had extensively sampled Gilbert OSullivans song Alone Again
(Naturally) for his own song Alone Again. The court could have applied
the rules described earlier in this chapter, decided whether or not this was a
large enough usage to make the second song substantially similar to the origi-
nal, discussed whether or not it counted as a fair use, whether Markies use
was transformative or parodic, whether it was going to have a negative impact
on the market for the original, weighed the issues, and ruled either way. In do-
ing so, there would have been some nice points to discuss about whether or
not the breadth of fair use depends in part on the practice in the relevant artis-
tic community, how to understand parodic reference, or the relevant markets
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for the work. (Biz Markies lawyers had asked for permission to use the sample,
but the Supreme Court has made clear that seeking permission does not
weigh against a defense of fair use.) There were also some tricky issues about the
breadth of legal rights over recordingsthe right was of relatively recent
creation and had some interesting limitations. Underlying it all was a more
fundamental question: how do we interpret the rules of copyright so as to
encourage musical creativity? After all, as this chapter has shown, borrowing
and reference are a fundamental part of musical practice. We ought to think
twice before concluding they are illegal. Are we to criminalize jazz? Condemn
Charles Ives? And if not, what is the carefully crafted line we draw that allows
some of those uses but condemns this one?
Judge Duffy, however, was uninterested in any of these subtleties.
Thou shalt not steal has been an admonition followed since the dawn of civiliza-
tion. Unfortunately, in the modern world of business this admonition is not always
followed. Indeed, the defendants in this action for copyright infringement would
have this court believe that stealing is rampant in the music business and, for that
reason, their conduct here should be excused. The conduct of the defendants
herein, however, violates not only the Seventh Commandment, but also the copy-
right laws of this country.
20
If this were a law school exam, it would get a D. (Maybe a C given grade in-
ation.) Duffy makes all of the errors Jefferson warned us against. Tangible
property is the same as intellectual property. Songs are the same as sheep and
the same rules can apply to both. Theft is theft. The prior injunctions of the
framers and the courts notwithstanding, we do not need to think carefully
about the precise boundaries of intellectual property rights or worry that in-
terpreting them too broadly is as bad as making them too narrow. So far as
Judge Duffy is concerned, the tablets on Mount Sinai were inscribed with an
absolute injunction against digital sampling. (The font must have been small.)
But to say all this is merely to scratch the surface of how regrettable a decision
it is. In the narrowest and most formalistic legal terms it is also very poor.
Judge Duffy gives not a single citation to the provisions of the Copyright
Act. He ignores issues of de minimis copying, substantial similarity, fair use,
and the differences between the right over the recording and that over the
composition. In fact, he quotes the Bible more, and more accurately, than he
does Title 17 of the U.S. Codethe Copyright Act. The one mention he makes
of actual copyright law is at the end of the opinion, when he refers the case for
criminal prosecution! When I rst read this case, I seriously wondered for a
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moment if it were a crude parody of a legal opinion written by someone who
had never been to law school.
Is the result in this case wrong? Personally, I do not think so. It is possible,
even probable, that a conscientious judge who bothered to read the law could
go through a careful analysis and nd that Markies use went beyond de min-
imis copying, that it was neither creative, parodic, nor short enough to count
as a fair use. The judge might have presumed a negative effect on the market for
Mr. OSullivans song and thus could have ruled that it was a copyright in-
fringement. In doing so, the judge would have to give some guidance to
future courts about digital sampling. The most likely guidance would be the
sample here is so extensive and so unchanged, that this case says little about
the wider musical practice of sampling. Judge Duffys opinion was poor not
because of the result he reached, but because he reached it in an overly broad
and judicially inappropriate way that became a guideline for future cultural
creation. Worse still, the industry listened to him.
In excellent books on this issue, Kembrew McLeod and Siva Vaidhyanathan
each argue that Grand Upright was a disaster for rap music.
21
The industrys
practice turned full circle almost overnight. Now every sample, no matter how
tiny, had to be clearedlicensed from the owners of the recording. As they
tell the story, this legal change caused an aesthetic change. The number of
samples in an average song dropped precipitously. The engaging complexity
of the Public Enemy wall of sound gave way to the simplistic thumping
beat and unimaginative synthesizer lines of modern rap. I must admit to shar-
ing McLeods and Vaidhyanathans musical prejudices. The causal claim is
harder to substantiate, but industry lawyers and musicians both agree that
changes in the industrys understanding of the law had a major role in trans-
forming the practice of sampling.
If we disregard the Jefferson Warning and assume the recording artist has
absolute property rights over his work, then we could ignore the idea that
forcing people to pay for stuff they take might have a negative effect on future
art and culture. Theft is theft. I might be able to make art much more easily if
I did not have to pay for the paint and canvas, but that is not commonly held
to excuse shoplifting from art stores. But if we take the Jefferson Warning
seriously, then intellectual propertys job is to balance the need to provide in-
centives for production and distribution with the need to leave future creators
free to build upon the past. Reasonable minds will differ on where this line is
to be drawn, but the process of drawing it is very different from the process
Judge Duffy had in mind.
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For fteen years, critics of the decision waited for an appeals court to x the
law in this area. When the case of Bridgeport Music, Inc. v. Dimension Films
came up, they thought they had what they wanted. The band NWA had used
a tiny fragment (less than two seconds) consisting of three notes of a guitar
solo from the George Clinton song Get Off Your Ass and Jam. The frag-
ment was an arpeggiated chord, which simply means that you strike the notes
of the chord individually and in sequence. It was, in fact, a pretty standard
deedly sound, familiar from many guitar solos. NWA then heavily distorted
this fragment and looped it so that it played in the background of one part of
the songso faintly that it is almost impossible to hear and completely im-
possible to recognize. (With the distortion it sounds like a very faint and dis-
tant police siren.) A company called Bridgeport Music owned the sound
recording copyright over the Clinton song. They sued. NWAs response was
predictablethis was classic de minimis copying, which the law did not
touch. One did not even have to get to the issue of fair use (though this surely
would be one).
The appeals court did not waste any time attempting to dignify Judge
Duffys decision in Grand Upright.
Although Grand Upright applied a bright-line test in a sampling case, we have not
cited it as precedent for several reasons. First, it is a district court opinion and as
such has no binding precedential value. Second, although it appears to have in-
volved claims for both sound recording and musical composition copyright in-
fringement, the trial judge does not distinguish which he is talking about in his
ruling, and appears to be addressing primarily the musical composition copyright.
Third, and perhaps most important, there is no analysis set forth to indicate how
the judge arrived at his ruling, which has resulted in the case being criticized by
commentators.
22
They did like one thing about the decision, however: its bright-line rule, Thou
Shalt Not Steal. (Lawyers use the term bright-line rule to refer to a rule that
is very easy to apply to the facts. A 55 mph speed limit is a bright-line rule.) The
Bridgeport court rejected the idea that sound recording copyrights and music
composition copyrights should be analyzed in the same way. They wanted to set
a clear rule dening how much of a sound recording one could use without per-
mission. How much? Nothing. To be precise, the court suggests in a footnote
that taking a single note might be acceptable since the copyright protection only
covers a series. Anything more, however, is clearly off limits.
Though they come to a conclusion that, if anything, is more stringent than
Judge Duffys, they do so very differently. In their words, Get a license or do
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not sample. Effectively, the court concludes that the sound recording copyright
is different enough from the composition copyright that a court could reason-
ably conclude that a different analysis is required. The judges are fully aware
that copyright must balance encouraging current creators and leaving raw
material to future creatorsthe Jefferson Warning holds no novelty for them.
But they conclude that a clear one-note rule will do, because if the costs of
licenses are too high, samplers can simply recreate the riff themselves, and this
will tend to keep prices reasonable.
This is an interesting idea. Why does this not happen more often? Why do
samplers not simply recreate James Browns drumbeat from Funky Drum-
mer, or George Clintons solo from Get Off Your Ass and Jam? Musicians
offer lots of different answers. They do not understand the distinction the court
is drawing, so the market never develops. The samples themselves cannot be
replicated, because the music has all kinds of overtones from the historical
equipment used and even the methods of recording. Fundamentally, though,
the answer seems to be one of authenticity, ironically enough. The original
beats have a totemic signicancelike the great standard chord sequences in
jazz. One cannot substitute replicas for James Browns funkiness. It just would
not be the same. As Walter Benjamin pointed out long ago in The Work of
Art in the Age of Mechanical Reproduction, cheap copying actually increases
the demand for authenticity.
23
The courts economic analysiswhich imag-
ines a world of fungible beats produced for music as a consumer gooddeals
poorly with such motivations.
When the court rst released its decision, it was greeted with concern even
by recording industry representatives who might have been expected to favor
it, because it appeared to do away with not only the de minimis limitation on
copyright (some portions are just too small to count as copying) but the
fair use provisions as well. The court took the very unusual step of rehearing
the case and amending the opinion, changing it in a number of places and
adding a paragraph that stated that when the case went back to the district
court, the judge there was free to consider the fair use defense. Of course, if
one takes this seriouslyand, for the constitutional reasons given in Chapter 5,
I agree that the court has no power to write fair use out of the statuteit un-
dermines the supposedly clear rule. If the factors of fair use are seriously ap-
plied, how can a three-note excerpt ever fail to be fair use? And if we always
have to do a conventional fair use analysis, then the apparent clarity of the
one-note rule is an illusion.
The Bridgeport decision is a bad one, I believe. Among other things, it fails
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to take seriously the constitutional limitations on copyrightincluding the
originality requirement and the First Amendment. (A three-note sample is
not original enough to be protected under copyright law, in my view. There
are also more speech-related issues in sampling than the court seems to realize.)
The competitive licensing market the court imagines seems more like eco-
nomic fantasy than reality. I think the ruling sets unnecessary barriers on
musical creation and ends up with a rule that is just as blurry as the one it
criticizes. I think the courts reading of the statute and legislative history
is wrongthough I have not bored you with the full details of that argument.
But I want to be clear that it is a very different kind of bad decision from
Judge Duffys.
The court in Bridgeport does see copyright as a balance. It does understand
the need for future creators to build on the past, but it also shows that a simple
willingness to look upon intellectual property protections in a utilitarian way
does not solve all problems. It certainly does not proceed from Jeffersons pre-
sumption that intellectual property protections should be interpreted narrowly.
Though it claims to have a literal reading of the statute, the real driving
force in the analysis is an unconsummated desire for bright-line rules and a
belief that the market will solve these problems by itself. The court also sug-
gests that [i]f this is not what Congress intended or is not what they would
intend now, it is easy enough for the record industry, as they have done in the
past, to go back to Congress for a clarication or change in the law. Note the
assumption that the record industry is the most reliable guide to Congresss
intentions or that it is the only entity affected by such a rule. This is truly the
image of copyright law as a contract among affected industries. Of course,
digital artists such as The Legendary K.O. hardly t within such a model.
Under the rule in BridgeportGet a license or do not sampleMr. Randle
and Mr. Nickerson appear to be breaking the law. They did not get a license
and they most denitely did sample. What about fair use?
Under fair use, copyright allows a very specic (and possibly lengthy) use of
anothers material when the purpose is parody of that prior work itself. The
Supreme Court gave parody a unique status in the Acuff-Rose case. The (ex-
tremely profane) rap group 2 Live Crew had asked for permission to produce
a version of Roy Orbisons Pretty Woman. But where Orbison sang about the
pretty woman walking down the street whom he would like to meet, 2 Live
Crew wrote about a big hairy woman (with hair that aint legit, cause you
look like Cousin It). They sang about a bald headed woman with a teeny
weeny afro. They sang about group sex with both women. Finally, they told a
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two timin woman, now I know the baby aint mine. Justice Souter showed
the characteristic sangfroid of a Supreme Court justice faced with raunchy rap
music.
While we might not assign a high rank to the parodic element here, we think it fair
to say that 2 Live Crews song reasonably could be perceived as commenting on the
original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic mus-
ings of a man whose fantasy comes true, with degrading taunts, a bawdy demand
for sex, and a sigh of relief from paternal responsibility. The later words can be
taken as a comment on the naivet of the original of an earlier day, as a rejection of
its sentiment that ignores the ugliness of street life and the debasement that it sig-
nies. It is this joinder of reference and ridicule that marks off the authors choice of
parody from the other types of comment and criticism that traditionally have had a
claim to fair use protection as transformative works.
24
[emphasis added]
Truly, the law can confront and master all cultural forms. The heart of parody
as the Supreme Court described it is that one is taking aim at the original.
Because 2 Live Crew could be seen as directing their song at Orbisons origi-
nal, rather than using Orbisons song to make some other political or social
point, the court was willing to give it the favorable consideration that parody
receives as a fair use.
Does George Bush Doesnt Care About Black People t that model? The
Legendary K.O. were not taking aim at Gold Digger. True, they quoted
Wests actual words from the television broadcast (also copyrighted). They
even used them as their title. But they were not taking aim at his song. (Iron-
ically, Kanye West has a better claim that he was taking aim at Ray Charless
picture of womanhood, in just the way described in the 2 Live Crew case.)
Rather, The Legendary K.O. were using the sample of the song as the backing
to an entirely different rap that expressed, in familiar and popular musical
form, a more expansive version of his condemnation of both press and presi-
dent. That does not end the inquiry. Parody is not the only form of protected
criticism or commentary. But it makes it much harder for them to succeed,
particularly in light of the hostility toward sampling betrayed by both Grand
Upright and Bridgeport.
The videos made by The Black Lantern and Franklin Lopez present an
even more complex set of questions. On top of the music copyright issues, we
also have fair use claims for the extensive news footage and footage of Mr.
Foxx. The Black Lantern also used some fragments of a popular video by Jib-
Jab, which had a cartoon Bush and Kerry singing dueling parodied versions
of Woody Guthries This Land. When JibJabs video rst came out, the
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Guthrie estate claimed copyright infringement over the song. Assisted by a
number of public interest legal groups, JibJab claimed fair use. (It eventually
came out that the copyright over the song was no longer valid.) What did Jib-
Jab do when The Black Lantern sampled them in their turn? In a move that
both wins the prize for hypocrisy and serves to sum up the intersection of law
and culture I have been describing, they sent him a cease and desist letter. The
video was taken down for a week and he was eventually forced to remove the
segment of their video from his work. Fair use for me, but not for thee.
CONCLUSION
The Legendary K.O. samples Kanye West, who uses a fragment from Ray
Charles, who may have taken material from Will Lamartine Thompson or,
more likely, from Clara Ward (who herself borrowed from a gospel standard).
The chain of borrowing I describe here has one end in the hymns and spiritu-
als of the early 1900s and the other in the twenty-rst centurys chaotic stew
of digital sampling, remix, and mashup. Along the way, we have the synthesis
of old and the invention of new musical genresoften against the wishes of
those whose work is serving as the raw material. One way of viewing this story
is that each of these musicians (except for some imaginary original artist, the
musical source of the Nile) is a plagiarist and a pirate. If they are licensing
their material or getting it from the public domain, then they may not be law-
breakers but they are still unoriginal slavish imitators. If ones image of creativ-
ity is that of the romantic, iconoclastic creator who invents the world anew
with each creation, those conclusions seem entirely appropriate. The borrow-
ing here is rampant. Far from building everything anew, these musicians seem
quite deliberately to base their work on fragments taken from others.
It is important to remember that copyright does not subscribe completely
to the idea of romantic creation where music is concerned. As I pointed out
earlier, musical genres develop out of other genres: soul from gospel and
rhythm and blues; gospel from spirituals; rhythm and blues from jazz, jump
music, and Delta blues; and so on. When it comes to genres, we can play the
game of musicological six degrees of separation all day long. Copyright is
supposed to leave holes in its coverage so that the genre is not covered, only
the specic form of creativity within the genre. I mentioned before the need
to keep the lines of genre and form open, to keep them free from private prop-
erty rights in order to allow musicians to develop the form by using them as
common property, the highways of musical progress. So, for example, the
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twelve-bar blues uses the rst, fourth, and fth chords in a scale. That sequence
cannot be owned, unless blues is to become impossible or illegal. Bebop is
characterized by copious use of the attened ftha sound which was jarring
to audiences when it was rst introduced and which marked the break with
the more accessible jazz of swing and the big bands. The attened fth is not
owned. These characteristic genre-creating sequences or sounds are supposed
to be left in the public domain, though increasingly some scholarsincluding
meare coming to believe that we have managed to make the copyright
holders control so complete and so granular as to close those common areas
and impede the development of future musical forms. The Bridgeport court
might extend its logic and imagine that the entire musical commons could be
licensed, of course. The presence of other chord sequences would keep the
price down! But up to now, we have not gone that far. In theory at least, copy-
right is not supposed to stop the next Ray Charles, the person who wants to
fuse two older forms of music to create a third.
Yet the chain of borrowing that links The Legendary K.O., Kanye West,
Ray Charles, and the Bailey Gospel Singers is of a different kind. This bor-
rowing involves taking chunks of prior musicians melodies, their words, their
lyrical patterns. This is not just copying the genre. It is copying the lines of the
song within the genre. This is the kind of stuff copyright is supposed to regu-
late even when it is working well. And yet, listening to the sequence, it is hard
to deny that at each stage something artistic and innovative, something re-
markable, has been created. In fact, the story of this song is the striking ability
of each set of artists to impose their own sound, temperament, spirituality,
humor, vision of women, or, in the case of The Legendary K.O., their intense
and profane political anger, onto the musical phrases they have in common.
The postmodern conclusion here is there is nothing new under the
sunthat all creation is re-creation, that there is no such thing as originality,
merely endless imitation. If this is meant to be a comment about how things
get created, at least in music, I think there is some truth to it. But if it is a
claim about aesthetic worth, a denial that there are more and less creative in-
dividuals in the arts, I nd it as facile and unconvincing as its romantic
authorial opposite.
What is fascinating about the artists I describe here is that, while they do
not t neatly into either the aesthetic ideal of independent creation or the le-
gal model for how creative expression gets made, they each have a remarkable,
palpable creativity. Each leaves us with something new, even if formed partly
from the fragments of the past. One could describe Ray Charles as the merest
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plagiaristmaking search and replace songs by substituting a woman for
the deity in already-established hits. But if that is our conclusion, it merely
proves that our theories of aesthetics are poorer than the creativity they seek to
describe. So much the worse for the theories.
As Jefferson pointed out, the lines surrounding intellectual property are
hard to drawsomething the Bridgeport court got right. When we draw
them, whether legally or as a matter of aesthetic morality, we do so partly with
standard instances in mind. Well, that cant be wrong, we think to our-
selves, and reason by analogy accordingly. Yet the process of analogy fails us
sometimes, because the types of borrowing change over time.
Ray Charles was frank about the way he copied the style and licks of Nat
King Cole like an apprentice learning from a lawyer. But he and his estate
assiduously guarded his copyrights against more modern borrowing they
found to be inappropriate. Judge Duffy thunderously denounces Biz Markie.
It is harder to imagine him leveling the same condemnation at Dizzy Gille-
spie, Charles Ives, Oscar Peterson, or, for that matter, Beethoven, though all
of them made copious use of the works of others in their own. It is bizarre to
imagine a Bridgeport-like rule being extended to composition copyrights and
applied to music such as jazz. Get a license or do not solo? I think not. Does
it make any more sense for sampling?
If there is a single reason I told the story of these songs it is this: to most of
us, certainly to me, the idea that copyright encourages creativity and discour-
ages the reuse of material created by others seems reasonable. Of course, I
would want to apply the correctives implied by the Jefferson Warningto
make sure the rights were as short and as narrow as possible. But at least when
it comes to copying chunks of expression still covered by copyright, our intu-
itions are to encourage people to create their own work, rather than to rely
on remix. What does that mean in the world of music? As the story I have told
here seems to illustrate, even musicians of unquestioned originality, even
those who can make a claim to having created a new musical genre, some-
times did so by a process rather more like collage than creation out of noth-
ing, taking chunks of existing work that were proven to work well and setting
them in a new context or frame.
Imagine Ray Charles trying to create I Got a Woman today. Both of his
possible sources would be strongly and automatically protected by copyright.
The industries in which those works were produced would be much more
legalistic and innitely more litigious. The owners of those copyrights could
use them to stop him from desecrating their workwhich is literally what
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he is doing. We know Clara Ward objected to Charless other borrowings
from gospel. I cannot imagine Will Lamartine Thompson or his worthy neigh-
bors in East Liverpool looking kindly on the sweet early morning loving out-
side of wedlock described in I Got a Woman, still less the use of sacred music
to glorify it. And copyright gives them the power to say no. Remember
Macaulays description of how Richardsons novels might have been censored
by a moralistic heir? Even if the objections were not vetoes, but simple de-
mands for payment, would we get I Got a Woman and This Little Girl of
Mine? Given the extent of the borrowing that jump-started this particular
genre-bridging effort, would we be likely to see the birth of soul music?
Congress assures us that the many increases in copyright protection have
been in the name of encouraging creativity. The music industry says the
same thing when its pettifogging clearance procedures and permission culture
are criticized. But do we really think we are more likely to get a twenty-rst-
century Ray Charles, or a fusion of styles to create a new genre, in the world
we have made? Do we really think that the formalist ignorance of Judge Duffy
or the market optimism of the Bridgeport court, in which thick markets offer
fungible sets of samples to be traded like commodities, are good guides for the
future of music? Are we in fact killing musical creativity with the rules that are
supposed to defend it?
An Internet optimist would tell us that is precisely the point. True, because of
the errors described in the chapter on the Jefferson Warning, and the mistakes
catalogued in the chapters on the Internet Threat and the Farmers Tale, we have
dramatically expanded the scope, length, and power of the rights that are sup-
posed to shape our creative culture. But technology cures all. Look at The Leg-
endary K.O., The Black Lantern, or Franklin Lopez. They are all probably
breaking the law as it is currently interpreted by the courts. But their work can be
created for pennies and distributed to millions. The technology allows people to
circumvent the law. Admittedly, some of the copyright holders will police their
rights assiduouslythink of JibJabs newfound dislike of fair use and their power
to alter The Black Lanterns video. But others either cannot or will not. Kanye
Wests representatives in particular are unlikely to be stupid enough to sue The
Legendary K.O. in the rst place. Internet distribution becomes a demimonde
in which the rules of the rest of the society either cannot or will not be enforced.
Art gets its breathing room, not from legal exceptions, but from technological
enforcement difculties. Finally, as more and more people can create and dis-
tribute digital culture, they are less likely to understand, believe in, or accept
rules that are strongly at variance with their aesthetic and moral assumptions.
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There is a lot to these points. The technology does transform the conditions
of creativity, and sometimes it runs right over the law in the process. Thou-
sands, even millions, can be reached outside of conventional distribution
channels with work that is technically illegal. And attitudes toward creative
propriety do not track legal rules. When I wrote to Mr. Randle and Mr. Nick-
erson, I found that they realized Mr. West probably had a legal right to get
their work taken down, but they felt he would not use it, and they had a very
commonsensical conception of what they ought to be allowed to do. They
were not making any money from this. They were making a political point,
drawing attention to a political and human problem. That made it okay. They
would have liked more formal permission so that they could actually distrib-
ute CDs through conventional for-prot channels, perhaps with some por-
tion of the proceeds going to disaster relief, but they understood they were
unlikely to get it.
Despite all this, I am uncomfortable with the argument do not worry,
technology will allow us to evade the rules where they are stupid. A system
that can only function well through repeated lawbreaking is an unstable and
dangerous one. It breeds a lack of respect for the law in those who should be
its greatest supporters and beneciaries. It blurs civil disobedience and plain
old lawbreaking. Sitting in on the segregated lunch counter and being willing
to face the consequences is very different from parking in the disabled space
and hoping you can get away with it. It also blurs our judgment of conduct.
Whatever one thinks of them, The Legendary K.O. are doing something very
different than a college student who just does not want to pay for music and
downloads thousands of tracks for free from le sharing networks.
The problem is not simply one of blurring. Technology-based freedoms
are not reliable (though legal ones, too, may fail). In a pinch, the technology
may not save you, as thousands of those same downloaders have found out
when sued by the RIAA and forced to pay thousands of dollars for an activity
they thought to be private and anonymous. The Internet solution also leaves
certain types of artistic creation dependent on the vagaries of the current tech-
nology, which may well change, eliminating some of the zone of freedom we
currently rely on. But more worrisome is the fact that this solution actually
connes certain types of art to the world of the Internet.
The video of George Bush Doesnt Care About Black People could be
seen by many, but only if they were wired to the right technological and social
network. (After all, someone has to tell you to watch.) It was a searing inter-
vention in the national debate on Katrina. But it appeared on no television
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station. Like most of the mashups created online, the fact that the rights could
never be cleared keeps it off mass media. Copyright acts as the barbed wire
around mass media outlets. That is a shame, I think. Not because that video
is so goodyou may love it or hate it. But because this kind of artwork has
something important to contribute to our national culture. Imagine a world
in which Ray Charles could create I Got a Woman, but could only circulate
it to a narrow group of the le-trading digerati because of a agrant violation
of Clara Wards copyright. Do we still get soul? The blues? Jazz? Or do we just
get a precious and insular digital subculture, whose cultural experiments never
reach the mainstream?
Throughout his life, Charles described an intimate relationship with his
audience, with the public. He described their tastes as a check, as a corrective;
he thought they would actually be ahead of the artists. He wanted to make
songs that would be listened to by tens of millions of people. And he wanted
to make art and lots of money. I am all for the person who wants to create as
an amateur-professional and distribute outside the chains of commerce. I
have worked with organizations that make it easier to do this. But I also be-
lieve in the power and creativity of commercial culture and political speech
carried on mass media. Ironically, our current copyright system serves it
poorly.
What is the solution to all of this? The music business runs on compulsory
licenses, a legally granted ability to use music in certain ways without permis-
sion, though with a fee. The system seems to function pretty well. One solu-
tion is to extend that system to the world of mashups and derivative works. If
you merely copy the whole of my work and circulate it on le sharing net-
works or on CDs, we apply the current rules and penalties. If, on the other
hand, you make a derivative work, mixing your work with mine, then there
are two alternatives. If you stay in the world of nonprot exchange, you get
a heightened presumption in favor of fair use (perhaps administered through
a quicker and cheaper system of arbitration). If you move into the for-prot
world, then you must pay a at licensing fee or percentage of prots to the
copyright holder.
A second solution would be to curtail the hypertrophy of protectionism
that made all this happen in the rst place. The copyright term could be
shortened or we could require renewal every twenty-eight years. (There are in-
ternational treaties that currently forbid the latter alternative.) We could cut
back on excesses like the Bridgeport decision, create incentives to make the
music industry less legalistically insistent on policing the most atomic level of
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creation. We could exempt samples shorter than ve seconds from copyright
liability, clarify the boundaries of fair use, and extend it beyond parody to
other genre-smashing forms such as satire and collage.
There are enormous obstacles to all these proposals. In particular, while
artists fare very poorly under the current clearance culturepaying but not re-
ceiving the benets of paymentsthe middlemen who prot from transaction
costs are not keen on abolishing them. Certainly if, as the Bridgeport court
assumed, the recording industry is the party responsible for ne-tuning copy-
right law, we are hardly likely to see any reforms that threaten current modes
of doing business. Yet there is a ray of hope. It is getting harder and harder to
pretend that the rules ostensibly designed to encourage creativity are actually
working. At the same time, more and more people are creating and distribut-
ing cultural objectsbecoming subjects of intellectual property law in the
process, often to their dismay and irritation. It is in that conjunctiona far cry
from the industry contract envisioned by the Bridgeport courtthat hope for
the future of copyright laws treatment of culture might lie.
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7
The Enclosure of Science
and Technology:
Two Case Studies
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Over the last forty years, much has changed in the way that scientic
research and technological development are organized, funded, and
institutionally arranged. Much has also changed in the type of scien-
tic and technical material that is covered by intellectual property
rights, the ways that material is covered, the parties who hold the
rights, and the state of research and development at which rights
claims are made. Many academics who study both sciences organiza-
tional structure and the intellectual property claims that surround it
are concerned about the results. To say this is not to conjure up a
tragically lost world of pure research science, untainted by property
claims or prot motives. That world never existed and it is probably
a good thing too. Intellectual property rights, and the prot motive
more generally, have a vital and benecial role in moving innovations
from lab bench to bedside, from computer simulation to actual
ight. The question is not whether intellectual property rights are
useful as part of scientic and technological development. The ques-
tion is what type of rights they should be, where in the research pro-
cess those rights are best deployed, how they should coexist with
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state funded basic scientic and technological research, how broad they
should be, how they should deal with new technologies, how long they should
last, how they should treat follow-on innovations.
I cannot hope here to answer all those questions, though some fascinating
research has begun the process. Instead, as with the music chapter, I will of-
fer a case studyactually two case studiesthat try to illuminate the process
I am describing, to illustrate its pitfalls and its strange and unintended
consequences.
The two dening technologies of the last thirty years are biotechnology and
the networked computer. Each is both product and platform. Innovations
themselves, they are also constitutive technologies that enable still more inno-
vations. But at several historical moments in the development of each we
came perilously close to breaking technology with law.
1
Some would say that
it was not just a close shave: we actually have hampered or limited the full
potential of technology, slowing down its dynamism with a host of overbroad
software patents, gene patents, and materials transfer agreements. Others are
more optimistic. They think that a series of rapid improvisations by courts,
scientists, programmers, and businesspeople has largely mitigated any prob-
lems caused by the process of legal expansion.
2
But if mistakes were made, it is
important to know what they were lest we continue or repeat them. If there
were xes, it is important to know if they can be replicated.
So were there mistakes? If so, have they been xed, and how? Drawing
on an article I co-wrote with my brilliant colleague Arti Rai,
3
this chapter
suggests some answers to those questions by sketching out some details of the
legal history of those technologies, concluding with a discussion of a single
promising new technology that shares aspects of bothsynthetic biology.
The answers are important. Behind the abstract words innovation or tech-
nological development there are lives saved or lost, communicative freedoms
expanded or contracted, communities enabled or stunted, wealth generated
or not. The subject would benet from informed, sophisticated, democratic
attention. It is not something you want to leave a host of lawyers and lobby-
ists to decide among themselves.
A MACHINE THAT CONTAINS
ALL OTHER MACHINES
Imagine a person staring at an innite roll of paper tape. On the paper are
symbols in some alphabet or number system. The reader carries out simple,
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operable instructions on the basis of that data. Add together the next two
digits you are presented with and write down the answer. If the answer is odd,
go to step 2. If the answer is even, go to step 3. Now replace the person with
a mechanical head that can read the instructions, carry out the desired
operations, and write the answer down. The British mathematician Alan
Turing imagined something like thisa little more complicated, perhaps, but
fairly similar. What is it? We have the reading head, the set of instructions, the
data on which the instructions are to be performed, the record of the result,
and some kind of state table that tells the machine where it is in the process.
These are the component parts of Turing machinesor as we know them
better, computers. More accurately, Turing machines are a method of simulat-
ing the operation of computers, a metaphor that enables us to imitate their
logical processes. In the words of Wikipedia, despite their simplicity[they]
can be adapted to simulate the logic of any computer that could possibly be
constructed. And to give lawyers ts. But that is getting ahead of ourselves.
In Greek mythology, Procrustes had a bed to which he tted its prospective
occupants, whether they liked it or not. The tall were trimmed down. The
short stretched on the rack. Intellectual property lawyers have many similari-
ties to Procrustes. The technologies that are brought before them are made to
t the conceptual boxes the law provides, boxes with names such as copy-
right and patent. Occasionally, new conceptual boxes are made, butfor
very good reasonsmost of the time we stick with the boxes we have. As with
Procrustes, things do not always t and the process can be distressing for its
subjects.
It is important to realize that the process of trimming and stretching can
be done well or badly. If it is done really badly, the technology is stunted, de-
formed, even destroyed. If it is done well, the law aids the development of the
technology in exactly the happy way described in Chapter 1. What did our
Procrustean legal system do with computers and computer science?
I will focus on softwarethe set of instructions the machine is to perform.
How should we think of it? Software is written down by programmers. It is
recorded rst in a form readable to humans, or at least geeks. Then, through
a series of transformations, it is turned into the machine code, the ones and
zeros that will operate the computer. But at its root it can be understood
through the metaphor of the simple list of instructions to be carried out in
order, just as with the Turing machine and its innite tape.
How should we t software into the categories of intellectual property?
We have writing, xation in some medium of symbols that can be read by
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othersboth machine and human. Writing is normally the domain of copy-
right. Are computer programs copyrightable? All kinds of problems present
themselves. At least in the United States, copyright covers expression. As
I pointed out in a previous book, at its base is the conception of the roman-
tic author impressing her uniqueness of spirit on the work at the moment of
writing. It is that expressive choice, not the facts or ideas on which the work
is based, that copyright covers. And it is only original expression that copy-
right covers. It does not cover purely functional objects, systems, processes,
or methods of operation. One cannot copyright the coat hanger, the mouse-
trap, or long division. One cannot even copyright a sculpture if the main
function of its design is to serve as a bicycle rack. Admittedly, one can copy-
right some expressive works that serve a practical purpose. A book about
how to do double-entry bookkeeping is copyrightable. Yet copyright covers
only the expressive choices used in selecting the words to explain the
method, and the images to represent it, not the methods it describes or the
facts or ideas it contains. Can copyright cover computer programs? Should
we see them as copyrightable how-to books or as uncopyrightable machines
made of words?
Machines and other functional innovations are normally the domain of
patent rights. One can patent the mousetrap, and then one gets an exclusive
right to the actual mechanically enabled method of catching mice, not just
the artistic ourishes on the blueprint. Patents have more demanding criteria
than copyrights. The invention needs to be novel and have utility, or useful-
ness; I cannot get a patent over something that would have been an obvious
idea to an insider in the relevant eld of technology, a person having ordi-
nary skill in the art, or PHOSITA, in the jargon of patent lawyers. But once
I get my patent, it gives me a very strong power to exclude others from the
inventioneven if they came up with it independently. The right lasts for
twenty years. Follow-on innovators who improve on my idea can get a patent
on that improvement. They can block me from using the improvement. I
can block them from using the original invention. Thus we have an
incentive to negotiate if either of us wants to bring the improved innovation
to market.
So where did software t? Was it copyrightable writing or patentable inven-
tion? There are two issues here. The rst is whether there should be any intel-
lectual property rights over software at all. The basic case for that proposition
is simple, a classic example of the public goods problem described in the rst
chapter. Software costs money to create, but is cheap to copy. When a youthful
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Bill Gates wrote his 1976 letter to the wonderfully named Dr. Dobbs Journal
of Computer Calisthenics & Orthodontia, he put the point clearly.
Who can afford to do professional work for nothing? What hobbyist can put 3-man
years into programming, nding all the bugs, documenting his product and dis-
tribute it for free? The fact is, no one besides us has invested a lot of money into
hobby software. We have written 6800 BASIC, and are writing 8080 APL and 6800
APL, but there is very little incentive to make this software available to hobbyists.
Most directly, the thing you do is theft.
4
He signed the letter Bill Gates, General Partner, Micro-Soft. The hyphen
would disappear in time. The philosophy stuck around.
Though there are quibbles about the facts in Gatess lettercritics claim he
himself did a lot of free riding on public domain code and government-funded
computer timehis basic point is that software needs to be protected by
(enforceable) property rights if we expect it to be effectively and sustainably
produced. Some software developers disagree. But assuming one concedes the
point for the sake of argument, there is a second question: should software be
covered by copyright or patent, or some unidentied third option?
In practice, software ended up being covered by both schemes, partly be-
cause of actions by Congress, which included several references to software in
the Copyright Act, and partly as a result of decisions by the Copyright Ofce,
the Patent and Trademark Ofce, and judges. One could copyright ones code
and also gain a patent over the nonobvious, novel, and useful innovations
inside the software.
At rst, it was the use of copyright that stirred the most concern. As I ex-
plained in the last chapter, copyright seems to be built around an assumption
of diverging innovationthe fountain or explosion of expressive activity. Dif-
ferent people in different situations who sit down to write a sonnet or a love
story, it is presumed, will produce very different creations rather than being
drawn to a single result. Thus strong rights over the resulting work are not
supposed to inhibit future progress. I can nd my own muse, my own path to
immortality. Creative expression is presumed to be largely independent of the
work of prior authors. Raw material is not needed. Copyright is about sus-
taining the conditions of creativity that enable an individual to craft out of
thin air an Appalachian Spring, a Sun Also Rises, a Citizen Kane.
5
There are lots of reasons to doubt that this vision of creation out of noth-
ing works very well even in the arts, the traditional domain of copyright law.
The story of Ray Charless I Got a Woman bears ample witness to those
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doubts. But whatever its merits or defects in the realm of the arts, the vision
seems completely wrongheaded when it comes to software. Software solutions
to practical problems do converge, and programmers denitely draw upon
prior lines of code. Worse still, as I pointed out earlier, software tends to exhibit
network effects. Unlike my choice of novel, my choice of word processing
program is very strongly inuenced, perhaps dominated, by the question of
what program other people have chosen to buy. That means that even if a pro-
grammer could nd a completely different way to write a word processing
program, he has to be able to make it read the dominant programs les, and
mimic its features, if he is to attract any customers at all. That hardly sounds
like completely divergent creation.
Seeing that software failed to t the Procrustean bed of copyright, many
scholars presumed the process of forcing it into place would be cata-
strophic. They believed that, lacking patents high standards, copyrights mo-
nopolies would proliferate widely. Copyrights treatment of follow-on or
derivative works would impede innovation, it was thought. The force of net-
work effects would allow the copyright holder of whatever software became
the standard to extract huge monopoly rents and prevent competing innova-
tion for many years longer than the patent term. Users of programs would be
locked in, unable to shift their documents, data, or acquired skills to a com-
peting program. Doom and gloom abounded among copyright scholars, in-
cluding many who shared Mr. Gatess basic premisethat software should be
covered by property rights. They simply believed that these were the wrong
property rights to use.
Copyright did indeed cause problems for software developers, though it is
hard to judge whether those problems outweighed the economic benets of
encouraging software innovation, production, and distribution. But the nega-
tive effects of copyright were minimized by a remarkably prescient set of
actions by courts and, to a much lesser extent, Congress, so that the worst sce-
narios did not come to pass. Courts interpreted the copyright over software
very narrowly, so that it covered little beyond literal infringement. (Remem-
ber Jeffersons point about the importance of being careful about the scope of
a right.) They developed a complicated test to work out whether one program
infringed the details of another. The details give law students headaches every
year, but the effects were simple. If your software was similar to mine merely
because it was performing the same function, or because I had picked the
most efcient way to perform some task, or even because there was market de-
mand for doing it that way, then none of those similarities counted for the
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purposes of infringement. Nor did material that was taken from the public
domain. The result was that while someone who made literal copies of
Windows Vista was clearly infringing copyright, the person who made a com-
peting program generally would not be.
In addition, courts interpreted the fair use doctrine to cover decompila-
tionwhich is basically taking apart someone elses program so that you can
understand it and compete with it. As part of the process, the decompiler had
to make a copy of the program. If the law were read literally, decompilation
would hardly seem to be a fair use. The decompiler makes a whole copy, for a
commercial purpose, of a copyrighted work, precisely in order to cause harm
to its market by offering a substitute good. But the courts took a broader view.
The copy was a necessary part of the process of producing a competing prod-
uct, rather than a piratical attempt to sell a copy of the same product. This
limitation on copyright provided by fair use was needed in order to foster the
innovation that copyright is supposed to encourage. This is a nice variation of
the Sony Axiom from Chapter 4.
These rulings and others like them meant that software was protected by
copyright, as Mr. Gates wanted, but that the copyright did not give its owner
the right to prevent functional imitation and competition. Is that enough?
Clearly the network effects are real. Most of us use Windows and most of us
use Microsoft Word, and one very big reason is because everyone else does.
Optimists believe the lure of capturing this huge market will keep potential
competitors hungry and monopolists scared. The lumbering dominant players
will not become complacent about innovation or try to grab every morsel of
monopoly rent, goes the argument. They still have to fear their raptor-like
competitors lurking in the shadows. Perhaps. Or perhaps it also takes the con-
sistent threat of antitrust enforcement. In any event, whether or not we hit the
optimal point in protecting software with intellectual property rights, those
rights certainly did not destroy the industry. It appeared that, even with con-
vergent creativity and network effects, software could be crammed into the
Procrustean bed of copyright without killing it off in the process. Indeed, to
some, it seemed to fare very well. They would claim that the easy legal protec-
tion provided by copyright gave a nascent industry just enough protection to
encourage the investment of time, talent, and dollars, while not prohibiting
the next generation of companies from building on the innovations of the past.
In addition, the interaction between copyright and software has produced
some surprising results. There is a strong argument that it is the fact that soft-
ware is copyrightable that has enabled the commons-based creativity of free
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and open source software. What does commons-based creativity mean? Basi-
cally, it is creativity that builds on an open resource available to all. An addi-
tional component of some denitions is that the results of the creativity must
be fed back into the commons for all to use. Think of English. You can use
English without license or fee, and you can innovate by producing new words,
slang, or phrases without clearance from some Academie Anglaise. After you
coin your term, it is in turn available to me to build upon or to use in my own
sentences, novels, or jokes. And so the cycle continues. As the last chapter
showed, for the entire history of musical creativity until the last forty years or
so, the same had been true of at least a low level of musical borrowing. At the
basic level of musical phrases, themes, snatches of melody, even chord struc-
tures, music was commons-based creativity. Property rights did not reach
down into the atomic structure of music. They stayed at a higher level
prohibiting reproduction of complete works or copying of substantial and
important chunks. So in some areas of both music and language, we had
commons-based creativity because there were no property rights over the rel-
evant level. The software commons is different.
The creators of free and open source software were able to use the fact that
software is copyrighted, and that the right attaches automatically upon
creation and xation, to set up new, distributed methods of innovation. For
example, free and open source software under the General Public License
such as Linuxis a commons to which all are granted access. Anyone may
use the software without any restrictions. They are guaranteed access to the
human-readable source code, rather than just the inscrutable machine
code, so that they can understand, tinker, and modify. Modications can
be distributed so long as the new creation is licensed under the open terms of
the original. This creates a virtuous cycle: each addition builds on the com-
mons and is returned to it. The copyright over the software was the hook
that allowed software engineers to create a license that gave free access and the
right to modify and required future programmers to keep offering those free-
doms. Without the copyright, those features of the license would not have
been enforceable. For example, someone could have modied the open pro-
gram and released it without the source codedenying future users the right
to understand and modify easily. To use an analogy beloved of free software
enthusiasts, the hood of the car would be welded shut. Home repair, tinker-
ing, customization, and redesign become practically impossible.
Of course, if there were no copyright over software at all, software engi-
neers would have other freedomseven if not legally guaranteed open access
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to source code. Still, it was hard to deny that the extension of the property
regime hadbizarrely, at rst sightactually enabled the creation of a con-
tinuing open commons. The tempting real estate analogy would be environ-
mentalists using strong property rights over land to guarantee conservation
and open access to a green space, where, without property rights, the space
could be despoiled by all. But as I have pointed out earlier, while such analo-
gies may help us, the differences between land and intellectual property de-
mand that they be scrutinized very carefully. It is hard to overgraze an idea.
So much for copyright. What about patents? U.S. patent law had drawn
a rm line between patentable invention and unpatentable idea, formula, or
algorithm. The mousetrap could be patented, but not the formula used to cal-
culate the speed at which it would snap shut. Ideas, algorithms, and formulae
were in the public domainas were business methods. Or so we thought.
The line between idea or algorithm on the one hand and patentable ma-
chine on the other looks nice and easy. But put that algorithmthat series
of steps capable of being specied in the way described by the Turing
machineonto a computer, and things begin to look more complex. Say, for
example, that algorithm was the process for converting miles into kilometers
and vice versa. Take the rst number. If it is followed by the word miles,
then multiply by 8/5. If it is followed by the word kilometers, multiply by
5/8 . . . and so on. In the abstract, this is classic public domain stuffno
more patentable than E=mc
2
or F=ma. What about when those steps are
put onto the tape of the Turing machine, onto a program running on the
hard drive of a computer?
The Court of Appeals for the Federal Circuit (the United Statess leading
patent court) seems to believe that computers can turn unpatentable ideas
into patentable machines. In fact, in this conception, the computer sitting on
your desk becomes multiple patentable machinesa word processing machine,
an e-mail machine, a machine running the program to calculate the tensile
strength of steel. I want to stress that the other bars to patentability remain.
My example of mile-to-kilometer conversion would be patentable subject
matter but, we hope, no patent would be granted because the algorithm is not
novel and is obvious. (Sadly, the Patent and Trademark Ofce seems deter-
mined to undermine this hope by granting patents on the most mundane and
obvious applications.) But the concern here is not limited to the idea that
without a subject matter bar, too many obvious patents will be granted by an
overworked and badly incentivized patent ofce. It is that the patent was
supposed to be granted at the very end of a process of investigation and scien-
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tic and engineering innovation. The formulae, algorithms, and scientic dis-
coveries on which the patented invention was based remained in the public
domain for all to use. It was only when we got to the very end of the process,
with a concrete innovation ready to go to market, that the patent was to
be given. Yet the ability to couple the abstract algorithm with the concept of
a Turing machine undermines this conception. Suddenly the patents are
available at the very beginning of the process, even to people who are merely
specifyingin the abstractthe idea of a computer running a particular series
of algorithmic activities.
The words by means of a computer arein the eyes of the Federal
Circuitan incantation of magical power, able to transubstantiate the ideas
and formulae of the public domain into private property. And, like the break-
ing of a minor taboo that presages a Victorian literary characters slide into
debauchery, once that rst wall protecting the public domain was breached,
the court found it easier and easier to breach still others. If one could turn an
algorithm into a patentable machine simply by adding by means of a com-
puter, then one could turn a business method into something patentable by
specifying the organizational or information technology structure through
which the business method is to be implemented.
If you still remember the rst chapters of this book, you might wonder why
we would want to patent business methods. Intellectual property rights are
supposed to be handed out only when necessary to produce incentives to supply
some public good, incentives that otherwise would be lacking. Yet there are
already plenty of incentives to come up with new business methods. (Greed
and fear are the most obvious.) There is no evidence to suggest that we need a
state-backed monopoly to encourage the development of new business meth-
ods. In fact, we want people to copy the businesses of others, lowering prices
as a result. The process of copying business methods is called competition
and it is the basis of a free-market economy. Yet patent law would prohibit it
for twenty years. So why introduce patents? Brushing aside such minor objec-
tions with ease, the Court of Appeals for the Federal Circuit declared business
methods to be patentable. Was this what Jefferson had in mind when he said
I know well the difculty of drawing a line between the things which are
worth to the public the embarrassment of an exclusive patent, and those
which are not? I doubt it.
It is commonplace for courts to look at the purpose of the law they are
enforcing when seeking to understand what it means. In areas of regulation
which are obviously instrumentalaimed at producing some particular result
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in the worldthat approach is ubiquitous. In applying the antitrust laws, for
example, courts have given meaning to the relatively vague words of the law
by turning to economic analysis of the likely effects of different rules on dif-
ferent market structures.
Patent law is as instrumental a structure as one could imagine. In the
United States, for example, the constitutional authorization to Congress to
pass patent and copyright legislation is very explicit that these rights are to
be made with a purpose in view. Congress has the power to promote the
progress of science and useful arts, by securing for limited times to authors
and inventors the exclusive right to their respective writings and discoveries.
One might imagine that courts would try to interpret the patent and copy-
right laws with that purpose, and the Jefferson Warning about its constraints,
rmly in mind. Yet utilitarian caution about extending monopolies is seldom
to be found in the reasoning of our chief patent court.
The difference is striking. Jefferson said that the job of those who adminis-
tered the patent system was to see if a patent was worth the embarrassment
to the public before granting it. The Constitution tells Congress to make
only those patent laws that promote the progress of science and useful arts.
One might imagine that this constitutional goal would guide courts in con-
struing those same laws. Yet neither Jeffersonian ideals nor the constitutional
text seem relevant to our chief patent court when interpreting statutory sub-
ject matter. Anything under the sun made by man is patentable subject
matter, and theres an end to it. The case that announced the rule on business
methods involved a patent on the process of keeping accounts in a hub-and-
spoke mutual fundwhich included multiplying all of the stock holdings of
each fund in a family of funds by the respective current share price to get to-
tal fund value and then dividing by the number of mutual fund shares that
each customer actually holds to nd the balance in their accounts. As my son
observed, I couldnt do that until nearly the end of third grade!
6
In theory of course, if the patent is not novel or is obvious, it will still be
refused. The Supreme Court recently held that the Court of Appeals for the
Federal Circuit has made nonobvious too easy a standard to meet.
7
It is
unclear, however, whether that judgment will produce concrete effects on
actual practices of patent grants and litigation. The Patent and Trademark
Ofce puts pressure on examiners to issue patents, and it is very expensive to
challenge those that are granted. Better, where possible, to rule out certain
subject matter in the rst place. Tempted in part by its irtation with the
idea made machine in the context of a computer, the Court of Appeals for
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the Federal Circuit could not bring itself to do so. Where copyright law
evolved to wall off and minimize the dangers of extending protection over
software, patent law actually extended the idea behind software patents to
make patentable any thought process that might produce a useful result.
Once breached, the walls protecting the public domain in patent law show a
disturbing tendency to erode at an increasing rate.
To sum up, the conceptual possibilities presented to copyright and patent
law by the idea of a Turing machine were fascinating. Should we extend copy-
right or patent to cover the new technology? The answer was we will extend
both! Yet the results of the extension were complex and unexpected in ways
that we will have to understand if we want to go beyond the simple but im-
portant injunctions of Jefferson and Macaulay. Who would have predicted
that software copyrights could be used to create a self-perpetuating commons
as well as a monopoly over operating systems, or that judges would talk know-
ingly of network effects in curtailing the scope of coverage? Who would have
predicted that patents would be extended not only to basic algorithms imple-
mented by a computer, but to methods of business themselves (truly a strange
return to legalized business monopolies for a country whose founders viewed
them as one of the greatest evils that could be borne)?
SYNTHETIC BIOLOGY
If you are a reader of Science, PLoS Biology, or Nature, you will have noticed
some attractive and bizarre photographs recently. A eld of bacteria that form
themselves into bulls-eyes and polka dots. A dim photograph of a womans face
taken by bacteria that have been programmed to be sensitive to light. You may
also have read about more inspiring, if less photogenic, accomplishmentsfor
example, the group of scientists who managed to program bacteria to produce
artemesinin, a scarce natural remedy for malaria derived from wormwood.
Poking deeper into these stories, you would have found the phrase synthetic
biology repeated again and again, though a precise denition would have
eluded you.
What is synthetic biology? For some it is simply that the product or pro-
cess involves biological materials not found in nature. Good old-fashioned
biotechnology would qualify. One of the rst biotechnology patent cases,
Diamond v. Chakrabarty, involved some bacteria which Dr. Chakrabarty had
engineered to eat oil slicksnot their natural foodstuff.
8
The Supreme Court
noted that the bacteria were not found in nature and found them to be
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patentable, though alive. According to the simplest denition, Dr. Chakrabartys
process would count as synthetic biology, though this example antedates the
common use of the term by two decades. For other scientists, it is the com-
pletely synthetic quality of the biology involved that marks the edge of the
discipline. The DNA we are familiar with, for example, has four base pairs
A, C, G, and T. Scientists have developed genetic alphabets that involve twelve
base pairs. Not only is the result not found in nature, but the very language in
which it is expressed is entirely new and articial.
I want to focus on a third conception of synthetic biology: the idea of turn-
ing biotechnology from an artisanal process of one-off creations, developed
with customized techniques, to a true engineering discipline, using processes
and parts that are as standardized and as well understood as valves, screws,
capacitors, or resistors. The electrical engineer told to build a circuit does not
go out and invent her own switches or capacitors. She can build a circuit
using off-the-shelf components whose performance is expressed using stan-
dard measurements. This is the dream of one group of synthetic biologists:
that biological engineering truly become engineering, with biological black
boxes that perform all of the standard functions of electrical or mechanical
engineeringmeasuring ow, reacting to a high signal by giving out a low
signal, or vice versa, starting or terminating a sequence, connecting the energy
of one process to another, and so on.
Of course an engineer understands the principle behind a ratchet, or a
valve, but he does not have to go through the process of thinking as part of
this design, I will have to create a thing that lets stuff ow through one way
and not the other. The valve is the mechanical unit that stands for that
thought, a concept reied in standardized material form which does not need
to be taken apart and parsed each time it is used. By contrast, the synthetic
biologists claim, much of current biotechnological experimentation operates
the way a seventeenth-century artisan did. Think of the gunsmith making
beautiful one-off classics for his aristocratic patrons, without standardized cal-
ibers, parts, or even standard-gauge springs or screws. The process produces
the gun, but it does not use, or produce, standard parts that can also be used
by the next gunsmith.
Is this portrayal of biology correct? Does it involve some hyping of the new
hot eld, some denigration of the older techniques? I would be shocked,
shocked, to nd there was hype involved in the scientic or academic enter-
prise. But whatever the degree to which the novelty of this process is being
subtly inated, it is hard to avoid being impressed by the projects that this
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group of synthetic biologists has undertaken. The MIT Registry of Standard
Biological Parts, for example, has exactly the goal I have just described.
The development of well-specied, standard, and interchangeable biological parts
is a critical step towards the design and construction of integrated biological
systems. The MIT Registry of Standard Biological Parts supports this goal by
recording and indexing biological parts that are currently being built and offering
synthesis and assembly services to construct new parts, devices, and systems. . . . In
the summer of 2004, the Registry contained about 100 basic parts such as opera-
tors, protein coding regions, and transcriptional terminators, and devices such as
logic gates built from these basic parts. Today the number of parts has increased to
about 700 available parts and 2000 dened parts. The Registry believes in the idea
that a standard biological part should be well specied and able to be paired with
other parts into subassemblies and whole systems. Once the parameters of these
parts are determined and standardized, simulation and design of genetic systems
will become easier and more reliable. The parts in the Registry are not simply
segments of DNA, they are functional units.
9
Using the Registry, a group of MIT scientists organizes an annual contest
called iGEM, the International Genetically Engineered Machine competition.
Students can draw from the standard parts that the Registry contains, and
perhaps contribute their own creations back to it. What kinds of genetically
engineered machines do they build?
A team of eight undergraduates from the University of Ljubljana in Slovenia
cheering and leaping onto MITs Kresge Auditorium stage in green team T-shirts
won the grand prize earlier this month at the International Genetically Engineered
Machine (iGEM) competition at MIT. The groupwhich received an engraved
award in the shape of a large aluminum Lego pieceexplored a way to use engi-
neered cells to intercept the bodys excessive response to infection, which can lead
to a fatal condition called sepsis. The goal of the 380 students on 35 university
teams from around the world was to build biological systems the way a contractor
would build a housewith a toolkit of standard parts. iGEM participants spent
the summer immersed in the growing eld of synthetic biology, creating simple
systems from interchangeable parts that operate in living cells. Biology, once
thought too complicated to be engineered like a clock, computer or microwave
oven, has proven to be open to manipulation at the genetic level. The new creations
are engineered from snippets of DNA, the molecules that run living cells.
10
Other iGEM entries have included E. coli bacteria that had been engi-
neered to smell like wintergreen while they were growing and dividing and
like bananas when they were nished, a biologically engineered detector that
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would change color when exposed to unhealthy levels of arsenic in drinking
water, a method of programming mouse stem cells to differentiate into
more specialized cells on command, and the mat of picture-taking bacteria
I mentioned earlier.
No matter how laudable the arsenic detector or the experimental technique
dealing with sepsis, or how cool the idea of banana-scented, picture-taking
bacteria, this kind of enterprise will cause some of you to shudder. Professor
Drew Endy, one of the pioneers in this eld, believes that part of that reaction
stems from simple novelty. A lot of people who were scaring folks in 1975
now have Nobel prizes.
11
But even if inchoate, the concerns that synthetic
biology arouses stem from more than novelty. There is a deep-seated fear that
if we see the natural world of biology as merely another system that we can
routinely engineer, we will have extended our technocratic methods into a
realm that was only intermittently subject to them in a way that threatens
both our structure of self-understanding and our ecosystem.
To this, the synthetic biologists respond that we are already engineering
nature. In their view, planned, structured, and rationalized genetic engineer-
ing poses fewer dangers than poorly understood interventions to produce
some specic result in comparative ignorance of the processes we are employ-
ing to do so. If the code is transparent, subject to review by a peer commu-
nity, and based on known parts and structures, each identied by a standard
genetic barcode, then the chance of detecting problems and solving them is
higher. And while the dangers are real and not to be minimized, the potential
benetsthe lives saved because the scarce antimalarial drug can now be
manufactured by energetic E. coli or because a cheap test can demonstrate
arsenic contamination in a village wellare not to be minimized either.
I rst became aware of synthetic biology when a number of the scientists
working on the Registry of Standard Biological Parts contacted me and my
colleague Arti Rai. They did not use these exact words, but their question
boiled down to how does synthetic biology fare in intellectual propertys
categories, and how can we keep the basics of the science open for all to use?
As you can tell from this book, I nd intellectual property fascinating
lamentably so perhaps. Nevertheless, I was depressed by the idea that scien-
tists would have to spend their valuable time trying to work out how to save
their discipline from being messed up by the law. Surely it would be better to
have them doing, well, science?
They have cause for concern. As I mentioned at the beginning of this chapter,
synthetic biology shares characteristics of both software and biotechnology.
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Remember the focus on reducing functions to black boxes. Synthetic biolo-
gists are looking for the biological equivalents of switches, valves, and invert-
ers. The more abstractly these are described, the more they come to resemble
simple algebraic expressions, replete with if, then statements and instruc-
tions that resolve to if x, then y, if not x, then z.
If this sounds reminiscent of the discussion of the Turing machine, it
should. When the broad rules for software and business methods were enun-
ciated by the federal courts, software was already a developed industry. Even
though the rules would have allowed the equivalent of patenting the alphabet,
the very maturity of the eld minimized the disruption such patents could
cause. Of course prior art was not always written down. Even when it was
recorded, it was sometimes badly handled by the examiners and the courts,
partly because they set a very undemanding standard for ordinary expertise
in the art. Nevertheless, there was still a lot of prior experience and it rendered
some of the more basic claims incredible. That is not true in the synthetic
biology eld.
Consider a recent article in Nature, A universal RNAi-based logic evaluator
that operates in mammalian cells.
12
The scientists describe their task in terms
that should be familiar. A molecular automaton is an engineered molecular
system coupled to a (bio)molecular environment by ow of incoming mes-
sages and the actions of outgoing messages, where the incoming messages are
processed by an intermediate set of elements, that is, a computer. The article
goes on to describe some of the key elements of so-called Boolean algebra
or, and, not, and so onimplemented in living mammalian cells.
These inscriptions of Boolean algebra in cells and DNA sequences can be
patented. The U.S. Department of Health and Human Services, for example,
owns patent number 6,774,222:
This invention relates to novel molecular constructs that act as various logic
elements, i.e., gates and ip-ops. . . . The basic functional unit of the construct
comprises a nucleic acid having at least two protein binding sites that cannot be
simultaneously occupied by their cognate binding protein. This basic unit can
be assembled in any number of formats providing molecular constructs that act like
traditional digital logic elements (ips-ops, gates, inverters, etc.).
My colleagues Arti Rai and Sapna Kumar have performed a patent search and
found many more patents of similar breadth.
13
What is the concern? After all, this is cutting-edge science. These seem like
novel, nonobvious inventions with considerable utility. The concern is that
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the change in the rules over patentable subject matter, coupled with the
Patent and Trademark Ofces handling of both software and biotechnology,
will come together so that the patent is not over some particular biological cir-
cuit, but, rather, over Boolean algebra itself as implemented by any biotech-
nological means. It would be as if, right at the beginning of the computer age,
we had issued patents over formal logic in softwarenot over a particular
computer design, but over the idea of a computer or a binary circuit itself.
By means of a computer was the magic phrase that caused the walls
around the public domain of algorithms and ideas to crumble. Will by means
of a biological circuit do the same? Andto repeat the key pointunlike
computer science, biotechnology is developing after the hypertrophy of our
intellectual property system. We do not have the immune system provided
by the established practices and norms, the prior art, even the community
expectations that protected software from the worst effects of patents over the
building blocks of science.
Following the example of software, the founders of the MIT Registry of
Standard Biological Parts had the idea of protecting their discipline from
overly expansive intellectual property claims by turning those rights against
themselves. Free and open source software developers have created a com-
mons using the copyright over the code to impose a license on their software,
one that requires subsequent developers to keep the source open and to give
improvements back to the software commonsa virtuous cycle. Could the
Registry of Standard Biological Parts do the same thing? The software com-
mons rests on a license. But, as I pointed out in the last section, the license
depends on an underlying property right. It is because I have automatic copy-
right over my code that I can tell you use it according to these terms or you
will be violating my copyright. Is there a copyright over the products of syn-
thetic biology? To create one we would have to take the extension of copyright
that was required to reach software and stretch it even further. Bill Gates
might argue for intellectual property rights over software using the logic of his
article in Dr. Dobbs Journal. Will the argument for copyrights over synthetic
biological coding be I need the property right so I can create a commons?
In practice, I think the answer is, and should be, no. Of course, one could
think of this as just another type of coding, making expressive choices in a
code of As, Cs, Gs, and Ts, just as a programmer does in Java or C++. Yet,
software was already a stretch for copyright law. Synthetic biology strikes
me as a subject matter that the courts, Congress, and the Copyright Ofce
are unlikely to want to cram into copyrights already distorted outlines
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particularly given the obvious availability of patent rights. As a matter of con-
ceptual intuition, I think they will see biological subject matter as harder to t
into the categories of original expressive writing. On one level, yes, it is all
information, but, on another level, the idea of programming with gene
sequences will probably raise hackles that the idea of coding inside a pro-
gramming language never would. As a normative matter, I think it would be a
poor choice to apply copyright to the products of synthetic biology. Attempt-
ing to produce a particular open commons, one might enable the kind of
hundred-year monopolies over functional objects that the critics of software
copyright initially feared.
If one wishes to keep the basic ideas and techniques of synthetic biology
open for subsequent innovators, there are alternatives to the idea of a syn-
thetic biology open source license. The Registry of Standard Biological Parts
or the BioBricks Foundation can simply put all their work into the public
domain immediately. (This, indeed, is what they are currently doing.) Such a
scheme lacks one key feature of open source software: the right to force subse-
quent innovators to release their code back into the commons. Yet it would
make subsequent patents on the material impossible, because it had already
been published.
Regardless of the decisions made about the future of synthetic biology,
I think its storycoupled to that of software and biotechnology more
generallypresents us with an important lesson. I started the chapter with the
metaphor of Procrustess bed. But in the case of software and biotechnology,
both the bedthe categories of copyright and patentand its inhabitants
the new technologieswere stretched. Cracks formed in the boundaries that
were supposed to prevent copyright from being applied to functional articles,
to prevent patents extending to cover ideas, algorithms, and business methods.
Until this point, though the science would have been strange to Jefferson or
his contemporaries, the underlying issue would have been familiar. The free-
trade, Scottish Enlightenment thinkers of the eighteenth and nineteenth cen-
turies would have scoffed at the idea that business methods or algorithms
could be patented, let alone that one could patent the or, if-then, and
not functions of Boolean algebra as implemented by a biological mechanism.
The response, presumably, is to ne tune our patent standardsto patent the
mousetrap and the corkscrew, not the notion of catching mice or opening
bottles by mechanical means. Still less should we allow the patenting of alge-
bra. These are ne points. Later scholarship has added formulae, data, and
historical analysis to back up Jeffersons concerns, while never surpassing his
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prose. As I said at the beginning of the book, if we were to print out the Jef-
ferson Warning and slip it into the shirt pocket of every legislator and regula-
tor, our policy would be remarkably improved.
But it is here that the story takes a new turn, something that neither Jeffer-
son nor the philosophers of the Scottish Enlightenment had thought of,
something that goes beyond their cautions not to confuse intellectual prop-
erty with physical property, to keep its boundaries, scope, and term as small as
possible while still encouraging the desired innovation.
Think of the reaction of the synthetic biologists at MIT. They feared that the
basic building blocks of their new discipline could be locked up, slowing the
progress of science and research by inserting intellectual property rights at
the wrong point in the research cycle. To solve the problem they were led seri-
ously to consider claiming copyright over the products of synthetic biology
to ght overly broad patent rights with a privately constructed copyright
commons, to ride the process of legal expansion and turn it to their own ends.
As I pointed out earlier, I think the tactic would not fare well in this particu-
lar case. But it is an example of a new move in the debate over intellectual
property, a new tactic: the attempt to create a privately constructed commons
where the public domain created by the state does not give you the freedom
that you believe creativity needs in order to thrive. It is to that tactic, and the
distributed creativity that it enables, that I will turn to now.
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8
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If you go to the familiar Google search page and click the intimidat-
ing link marked advanced search, you come to a page that gives
you more ne-grained control over the framing of your query. Nestled
among the choices that allow you to pick your desired language, or
exclude raunchy content, is an option that says usage rights. Click
free to use or share and then search for physics textbook and you
can download a 1,200-page physics textbook, copy it, or even print it
out and hand it to your students. Search for Down and Out in the
Magic Kingdom and you will nd Cory Doctorows fabulous sci-
ence ction novel, online, in full, for free. His other novels are there
toowith the willing connivance of his commercial publisher. Search
for David Byrne, My Fair Lady and you will be able to download
Byrnes song and make copies for your friends. Youll nd songs from
Gilberto Gil and the Beastie Boys on the same page. No need to pay
iTunes or worry about breaking the law.
Go to the advanced page on Flickr, the popular photo sharing
site, and you will nd a similar choice marked Creative Commons
License. Check that box and then search for Duke Chapel and
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you will get a selection of beautiful photos of the lovely piece of faux Gothic
architecture that sits about three hundred yards from the ofce where I am
writing these words. You can copy those photos, and 66 million others on dif-
ferent subjects, share them with your friends, print them for your wall, and, in
some cases, even use them commercially. The same basic tools can be found
on a range of specialized search engines with names like OWL Music Search,
BlipTV, SpinExpress, and OERCommons. Searching those sites, or just stick-
ing with the advanced options on Google or Yahoo, will get you courses in
music theory, moral philosophy, and C++ programming from famous uni-
versities; a full-length movie called Teach by Oscar-winning director Davis
Guggenheim; and free architectural drawings that can be used to build low-
cost housing. At the Wellcome Library, you will nd two thousand years of
medical images that can be shared freely. Searching for skeleton is particu-
larly fun. You can even go to your favorite search engine, type in the title of
this book, nd a site that will allow you to download it, and send the PDF to
a hundred friends, warmly anticipating their rapturous enjoyment. (Better ask
them rst.)
All this copying and sharing and printing sounds illegal, but it is not (at
least if you went through the steps I described). And the things you can do
with this content do not stop with simply reproducing it, printing it on paper,
or sending it by e-mail. Much of it can be changed, customized, remixed
you could rewrite the module of the class and insert your own illustrations,
animate the graphs showing calculus in action, morph the photo into some-
thing new. If you search for a musician with the unpromising name Brad
Sucks, you will nd a Web site bearing the modest subtitle A one man band
with no fans. Brad, it turns out, does not suck and has many fans. What
makes him particularly interesting is that he allows those fans, or anyone else
for that matter, to remix his music and post their creations online. I am par-
ticularly fond of the Matterovermind remix of Making Me Nervous, but
it may not be to your taste. Go to a site called ccMixter and you will nd that
musicians, famous and obscure, are inviting you to sample and remix their
music. Or search Google for Colin Mutchler and listen to a haunting song
called My Life Changed. Mr. Mutchler and a violinist called Cora Beth
Bridges whom he had never met created that song together. He posted a song
called My Life online, giving anyone the freedom to add to it, and she
didMy Life. Changed.
On December 15, 2002, in San Francisco, a charitable organization called
Creative Commons was launched. (Full disclosure: I have been a proud board
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member of Creative Commons since its creation.) Creative Commons was
the brainchild of Larry Lessig, Hal Abelson, and Eric Eldred. All the works
I have just describedand this book itselfare under Creative Commons
licenses. The authors and creators of those works have chosen to share it with
the world, with you, under generous terms, while reserving certain rights for
themselves. They may have allowed you to copy it, but not to alter itto
make derivative works. Or they may have allowed you to use it as you wish, so
long as you do so noncommercially. Or they may have given you complete
freedom, provided only that you attribute them as the owner of the work.
There are a few simple choices and a limited menu of permutations.
What makes these licenses unusual is that they can be read by two groups
that normal licenses excludehuman beings (rather than just lawyers) and
computers. The textbooks, photos, lms, and songs have a tasteful little
emblem on them marked with a cc which, if you click on it, links to a
Commons Deed, a simple one-page explanation of the freedoms you have.
There are even iconsa dollar with a slash through it, for examplethat
make things even clearer. Better still, the reason the search engines could nd
this material is that the licenses also tell search engines exactly what free-
doms have been given. Simple metadata (a fancy word for tags that com-
puters can read) mark the material with its particular level of freedoms. This is
not digital rights management. The license will not try to control your com-
puter, install itself on your hard drive, or break your TV. It is just an expres-
sion of the terms under which the author has chosen to release the work. That
means that if you search Google or Flickr for works I am free to share, even
commercially, you know you can go into business selling those textbooks, or
printing those photos on mugs and T-shirts, so long as you give the author
attribution. If you search for show me works I can build on, you know you
are allowed to make what copyright lawyers call derivative works.
The idea behind Creative Commons was simple. As I pointed out in the
rst chapter, copyright adheres automatically on xation. As soon as you lift
the pen from the paper, click the shutter, or save the le, the work is copy-
righted. No formalities. No need even to use the little symbol . Once copy-
righted, the work is protected by the full might of the legal system. And the
legal systems default setting is that all rights are reserved to the author, which
means effectively that anyone but the author is forbidden to copy, adapt, or
publicly perform the work. This might have been a ne rule for a world in
which there were high barriers to publication. The material that was not pub-
lished was theoretically under an all rights reserved regime, but who cared?
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It was practically inaccessible anyway. After the development of the World
Wide Web, all that had changed. Suddenly people and institutions, millions
upon millions of them, were putting content onlineblogs, photo sites, vide-
ologs, podcasts, course materials. It was all just up there.
But what could you do with it? You could read it, or look at it, or play it
presumablyotherwise why had the author put it up? But could you copy it?
Put it on your own site? Include it in a manual used by the whole school
district? E-mail it to someone? Translate it into your own language? Quote
beyond the boundaries of fair use? Adapt for your own purposes? Take the
song and use it for your video? Of course, if you really wanted the work a lot,
you could try to contact the authornot always easy. And one by one, we
could all contact each other and ask for particular types of permissions for use.
If the use was large enough or widespread enough, perhaps we would even
think that an individual contract was necessary. Lawyers could be hired and
terms hashed out.
All this would be ne if the author wished to retain all the rights that copy-
right gives and grant them only individually, for pay, with lawyers in the room.
But what about the authors, the millions upon millions of writers, and pho-
tographers and musicians, and lmmakers and bloggers and scholars, who
very much want to share their work? The Cora Beth Bridges of the world are
never going to write individual letters to the Colin Mutchlers of the world
asking for permission to make a derivative work out of My Life. The person
who translated my articles into Spanish or Mandarin, or the people who re-
post them on their Web sites, or include them in their anthologies might have
asked permission if I had not granted it in advance. I doubt though that I
would have been contacted by the very talented person who took images from
a comic book about fair use that I co-wrote and mashed them up with words
from a book by Larry Lessig, and some really nice music from someone none
of us had ever met. Without some easy way to give permission in advance, and
to do so in a way that human beings and computers, as well as lawyers, can un-
derstand, those collaborations will never happen, though all the parties would
be delighted if they did. These are losses from failed sharingevery bit as
real as losses from unauthorized copying, but much less in the public eye.
Creative Commons was conceived as a private hack to produce a more
fine-tuned copyright structure, to replace all rights reserved with some rights
reserved for those who wished to do so. It tried to do for culture what the
General Public License had done for software. It made use of the same tech-
nologies that had created the issue: the technologies that made xation of
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expressive content and its distribution to the world something that people,
as well as large concentrations of capital, could do. As a result, it was able to
attract a surprising range of supportJack Valenti of the Motion Picture
Association of America and Hillary Rosen of the Recording Industry Associa-
tion of America, as well as John Perry Barlow of the Grateful Dead, whose
attitude toward intellectual property was distinctly less favorable. Why could
they all agree? These licenses were not a choice forced on anyone. The author
was choosing what to share and under what terms. But that sharing created
something different, something new. It was more than a series of isolated
actions. The result was the creation of a global commons of material that
was open to all, provided they adhered to the terms of the licenses. Suddenly it
was possible to think of creating a work entirely out of Creative Commons-
licensed contenttext, photos, movies, music. Your coursebook on music the-
ory, or your documentary on the New York skyline, could combine your own
original material with high-quality text, illustrations, photos, video, and mu-
sic created by strangers. One could imagine entire eldsof open educational
content or of open musicin which creators could work without keeping
one eye nervously on legal threats or permissions.
From one perspective, Creative Commons looks like a simple device for
enabling exercise of authorial control, remarkable only for the extremely large
number of authors making that choice and the simplicity with which they can
do so. From another, it can be seen as re-creating, by private choice and auto-
mated licenses, the world of creativity before law had permeated to the nest,
most atomic level of science and culturethe world of folk music or 1950s
jazz, of jokes and slang and recipes, of Ray Charless rewording of gospel
songs, or of Isaac Newton describing himself as standing on the shoulders of
giants (and not having to pay them royalties). Remember, that is not a world
without intellectual property. The cookbook might be copyrighted even if the
recipe was not. Folk music makes it to the popular scene and is sold as a copy-
righted product. The jazz musician freezes a particular version of the im-
provisation on a communally shared set of musical motifs, records it, and
sometimes even claims ownership of it. Newton himself was famously touchy
about precedence and attribution, even if not about legal ownership of his
ideas. But it is a world in which creativity and innovation proceed on the ba-
sis of an extremely large commons of material into which it was never imag-
ined that property rights could permeate.
For many of us, Creative Commons was conceived of as a second-best
solution created by private agreement because the best solution could not be
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obtained through public law. The best solution would be a return of the
formality requirementa requirement that one at least write the words
James Boyle copyright 2008, for example, in order to get more than 100
years of legal protection backed by strict liability and federal criminal law.
Those who did not wish to have the legal monopoly could omit the phrase
and the work would pass into the public domain, with a period of time dur-
ing which the author could claim copyright retrospectively if the phrase was
omitted by accident. The default position would become freedom and the
dead weight losses caused by giving legal monopolies to those who had not
asked for them, and did not want them, would disappear. To return to the
words of Justice Brandeis that I quoted at the beginning of the book:
The general rule of law is, that the noblest of human productionsknowledge,
truths ascertained, conceptions, and ideasbecome, after voluntary communica-
tion to others, free as the air to common use. Upon these incorporeal productions
the attribute of property is continued after such communication only in certain
classes of cases where public policy has seemed to demand it.
Brandeis echoes the Jeffersonian preference for a norm of freedom, with
narrowly constrained exceptions only when necessary. That preference means
that the commons of which I spoke is a relatively large oneproperty rights
are the exception, not the norm. Of course, many of those who use Creative
Commons licenses might disagree with that policy preference and with every
idea in this book. They may worship the DMCA or just want a way to get
their song or their article out there while retaining some measure of control.
That does not matter. The licenses are agnostic. Like a land trust which has a
local pro-growth industrialist and a local environmentalist on its board, they
permit us to come to a restricted agreement on goals (make sure this space is
available to the public) even when underlying ideologies differ. They do this
using those most conservative of toolsproperty rights and licenses. And yet,
if our vision of property is sole and despotic dominion, these licenses have
created something very differenta commons has been made out of private
and exclusive rights.
My point here is that Creative Commons licenses or the tools of free and
open source softwareto which I will turn in a momentrepresent some-
thing more than merely a second-best solution to a poorly chosen rule. They
represent a visible example of a type of creativity, of innovation, which has
been around for a very long time, but which has reached new salience on the
Internetdistributed creativity based around a shared commons of material.
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FREE AND OPEN SOURCE SOFTWARE
In 2007, Clay Shirky, an incisive commentator on networked culture, gave a
speech which anyone but a Net acionado might have found simultaneously
romantic and impenetrable. He started by telling the story of a Shinto shrine
that has been painstakingly rebuilt to exactly the same plan many times over
its 1,300-year lifeand which was denied certication as a historic building as
a result. Shirkys point? What was remarkable was not the building. It was a
community that would continue to build and rebuild the thing for more than
a millennium.
From there, Shirky shifted to a discussion of his attempt to get AT&T to
adopt the high-level programming language Perlwhich is released as free and
open source software under the General Public License. From its initial cre-
ation by Larry Wall in 1987, Perl has been adapted, modied, and developed by
an extraordinary range of talented programmers, becoming more powerful and
exible in the process. As Shirky recounts the story, when the AT&T represen-
tatives asked where do you get your support? Shirky responded, we get our
support from a communitywhich to them sounded a bit like we get our
Thursdays from a banana. Shirky concluded the speech thus:
We have always loved one another. Were human. Its something were good at. But
up until recently, the radius and half-life of that affection has been quite limited.
With love alone, you can plan a birthday party. Add coordinating tools and you can
write an operating system. In the past, we would do little things for love, but big
things required money. Now we can do big things for love.
1
There are a few people out there for whom operating systems and love
could plausibly coexist in a sentence not constructed by an innite number
of monkeys. For most though, the question is, what could he possibly have
meant?
The arguments in this book so far have taken as a given the incentives and
collective action problems to which intellectual property is a response. Think of
Chapter 1 and the economic explanation of public goods. The fact that it is
expensive to do the research to nd the right drug, but cheap to manufacture it
once it is identied provides a reason to create a legal right of exclusion. In those
realms where the innovation would not have happened anyway, the legal right
of exclusion gives a power to price above cost, which in turn gives incentives
to creators and distributors. So goes the theory. I have discussed the extent to
which the logic of enclosure works for the commons of the mind as well as it
did for the arable commons, taking into account the effects of an information
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society and a global Internet. What I have not done is asked whether a global
network actually transforms some of our assumptions about how creation hap-
pens in a way that reshapes the debate about the need for incentives, at least in
certain areas. This, however, is exactly the question that needs to be asked.
For anyone interested in the way that networks can enable new collabora-
tive methods of production, the free software movement, and the broader but
less political movement that goes under the name of open source software,
provide interesting case studies.
2
Open source software is released under a
series of licenses, the most important being the General Public License (GPL).
The GPL species that anyone may copy the software, provided the license
remains attached and the source code for the software always remains avail-
able.
3
Users may add to or modify the code, may build on it and incorporate
it into their own work, but if they do so, then the new program created is also
covered by the GPL. Some people refer to this as the viral nature of the
license; others nd the term offensive.
4
The point, however, is that the open
quality of the creative enterprise spreads. It is not simply a donation of a pro-
gram or a work to the public domain, but a continual accretion in which all
gain the benets of the program on pain of agreeing to give their additions
and innovations back to the communal project.
For the whole structure to work without large-scale centralized coordina-
tion, the creation process has to be modular, with units of different sizes and
complexities, each requiring slightly different expertise, all of which can be
added together to make a grand whole. I can work on the sendmail program,
you on the search algorithms. More likely, lots of people try, their efforts are
judged by the community, and the best ones are adopted. Under these condi-
tions, this curious mix of Kropotkin and Adam Smith, Richard Dawkins and
Richard Stallman, we get distributed production without having to rely on
the proprietary exclusion model. The whole enterprise will be much, much,
much greater than the sum of the parts.
Whats more, and this is a truly fascinating twist, when the production pro-
cess does need more centralized coordination, some governance that guides
how the sticky modular bits are put together, it is at least theoretically possible
that we can come up with the control system in exactly the same way. In this
sense, distributed production is potentially recursive. Governance processes,
too, can be assembled through distributed methods on a global network, by
people with widely varying motivations, skills, and reserve prices.
5
The free and open source software movements have produced software that
rivals or, some claim, exceeds the capabilities of conventional proprietary,
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binary-only software.
6
Its adoption on the enterprise level is impressive, as is
the number and enthusiasm of the various technical testaments to its strengths.
You have almost certainly used open source software or been its beneciary.
Your favorite Web site or search engine may run on it. If your browser is Fire-
fox, you use it every day. It powers surprising things around youyour ATM
or your TiVo. The plane you are ying in may be running it. It just works.
Governments have taken notice. The United Kingdom, for example, con-
cluded last year that open source software will be considered alongside pro-
prietary software and contracts will be awarded on a value-for-money basis.
The Ofce of Government Commerce said open source software is a viable
desktop alternative for the majority of government users and can generate
signicant savings. . . . These trials have proved that open source software is
now a real contender alongside proprietary solutions. If commercial compa-
nies and other governments are taking it seriously, then so must we.
7
Sweden
found open source software to be in many cases equivalent toor better
thancommercial products and concluded that software procurement shall
evaluate open software as well as commercial solutions, to provide better com-
petition in the market.
8
What is remarkable is not merely that the software works technically, but
that it is an example of widespread, continued, high-quality innovation. The
really remarkable thing is that it works socially, as a continuing system, sus-
tained by a network consisting both of volunteers and of individuals employed
by companies such as IBM and Google whose software output is neverthe-
less released into the commons.
Here, it seems, we have a classic public good: code that can be copied freely
and sold or redistributed without paying the creator or creators. This sounds like
a tragedy of the commons of the kind that I described in the rst three chapters
of the book. Obviously, with a nonrival, nonexcludable good like software, this
method of production cannot be sustained; there are inadequate incentives to
ensure continued production. E pur si muove, as Galileo is apocryphally sup-
posed to have said in the face of Cardinal Bellarmines certainties: And yet it
moves.
9
Or, as Clay Shirky put it, we get our support from a community.
For a fair amount of time, most economists looked at open source software
and threw up their hands. From their point of view, we get our support from
a community did indeed sound like we get our Thursdays from a banana.
There is an old economics joke about the impossibility of nding a twenty-
dollar bill lying on a sidewalk. In an efcient market, the money would already
have been picked up. (Do not wait for a punch line.) When economists
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looked at open source software they saw not a single twenty-dollar bill lying
implausibly on the sidewalk, but whole bushels of them. Why would anyone
work on a project the fruits of which could be appropriated by anyone? Since
copyright adheres on xationsince the computer programmer already has
the legal power to exclude otherswhy would he or she choose to take the ex-
tra step of adopting a license that undermined that exclusion? Why would
anyone choose to allow others to use and modify the results of their hard
work? Why would they care whether the newcomers, in turn, released their
contributions back into the commons?
The puzzles went beyond the motivations of the people engaging in this
particular form of distributed creativity. How could these implausible con-
tributions be organized? How should we understand this strange form of or-
ganization? It is not a company or a government bureaucracy. What could it
be? To Richard Epstein, the answer was obvious and pointed to a reason the
experiment must inevitably end in failure:
The open source movement shares many features with a workers commune, and is
likely to fail for the same reason: it cannot scale up to meet its own successes. To see
the long-term difculty, imagine a commune entirely owned by its original workers
who share pro rata in its increases in value. The system might work well in the early
days when the workforce remains xed. But what happens when a given worker
wants to quit? Does that worker receive in cash or kind his share of the gain in
value during the period of his employment? If not, then the run-up in value during
his period of employment will be gobbled up by his successora recipe for im-
mense resentment. Yet that danger can be ducked only by creating a capital struc-
ture that gives present employees separable interests in either debt or equity in
exchange for their contributions to the company. But once that is done, then the
worker commune is converted into a traditional company whose shareholders and
creditors contain a large fraction of its present and former employers. The bottom
line is that idealistic communes cannot last for the long haul.
10
There are a number of ideas here. First, idealistic communes cannot last for
the long haul. The skepticism about the staying power of idealism sounds
plausible today, though there are some relatively prominent counterexamples.
The Catholic Church is also a purportedly idealistic institution. It is based on
canonical texts that are subject to even more heated arguments about textual
interpretation than those which surround the General Public License. It
seems to be surviving the long haul quite well.
The second reason for doomsaying is provided by the word commune.
The problems Epstein describes are real where tangible property and excludable
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assets are involved. But is the free and open source community a commune,
holding tangible property in common and excluding the rest of us? Must it
worry about how to split up the proceeds if someone leaves because of bad
karma? Or is it a community creating and offering to the world the ability to
use, for free, nonrival goods that all of us can have, use, and reinterpret as we
wish? In that kind of commune, each of us could take all the property the
community had created with us when we left and the commune would still
be none the poorer. Jefferson was not thinking of software when he talked of
the person who lights his taper from mine but does not darken me, but the
idea is the same one. Copying software is not like ghting over who owns the
scented candles or the VW bus. Does the person who wrote the kernel of
the operating system resent the person who, much later, writes the code to man-
age Internet Protocol addresses on a wireless network? Why should he? Now the
program does more cool stuff. Both of them can use it. Whats to resent?
How about idealism? There is indeed a broad debate on the reasons that the
system works: Are the motivations those of the gift economy? Is it, as Shirky
says, simply the owering of an innate love that human beings have always
had for each other and for sharing, now given new strength by the geographic
reach and cooperative techniques the Internet provides? With love alone, you
can plan a birthday party. Add coordinating tools and you can write an oper-
ating system. Is this actually a form of potlatch, in which one gains prestige
by the extravagance of the resources one wastes? Is open source an implicit
rsum-builder that pays off in other ways? Is it driven by the species-being,
the innate human love of creation that continually drives us to create new
things even when homo economicus would be at home in bed, mumbling
about public goods problems?
11
Yochai Benkler and I would argue that these questions are fun to debate
but ultimately irrelevant.
12
Assume a random distribution of incentive struc-
tures in different people, a global networktransmission, information sharing,
and copying costs that approach zeroand a modular creation process. With
these assumptions, it just does not matter why they do it. In lots of cases, they
will do it. One person works for love of the species, another in the hope of a
better job, a third for the joy of solving puzzles, and a fourth because he has
to solve a particular problem anyway for his own job and loses nothing by
making his hack available for all. Each person has their own reserve price, the
point at which they say, Now I will turn off Survivor and go and create some-
thing. But on a global network, there are a lot of people, and with numbers
that big and information overhead that small, even relatively hard projects
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will attract motivated and skilled people whose particular reserve price has
been crossed.
More conventionally, many people write free software because they are paid
to do so. Amazingly, IBM now earns more from what it calls Linux-related
revenues than it does from traditional patent licensing, and IBM is the
largest patent holder in the world.
13
It has decided that the availability of an
open platform, to which many rms and individuals contribute, will actually
allow it to sell more of its services, and, for that matter, its hardware. A large
group of other companies seem to agree. They like the idea of basing their ser-
vices, hardware, and added value on a widely adopted commons. This does
not seem like a community in decline.
People used to say that collaborative creation could never produce a quality
product. That has been shown to be false. So now they say that collaborative
creation cannot be sustained because the governance mechanisms will not
survive the success of the project. Professor Epstein conjures up a central
committee from which insiders will be unable to cash outa nice mixture
of communist and capitalist metaphors. All governance systemsincluding
democracies and corporate boardshave problems. But so far as we can tell,
those who are inuential in the free software and open source governance com-
munities (there is, alas, no central committee) feel that they are doing very
well indeed. In the last resort, when they disagree with decisions that are taken,
there is always the possibility of forking the code, introducing a change to the
software that not everyone agrees with, and then letting free choice and market
selection converge on the preferred iteration. The free software ecosystem also
exhibits diversity. Systems based on GNU-Linux, for example, have distinct
avors with names like Ubuntu, Debian, and Slackware, each with passionate
adherents and each optimized for a particular concernbeauty, ease of use,
technical manipulability. So far, the tradition of rough consensus and running
code seems to be proving itself empirically as a robust governance system.
Why on earth should we care? People have come up with a surprising way
to create software. So what? There are at least three reasons we might care.
First, it teaches us something about the limitations of conventional economics
and the counterintuitive business methods that thrive on networks. Second,
it might offer a new tool in our attempt to solve a variety of social problems.
Third, and most speculative, it hints at the way that a global communications
network can sometimes help move the line between work and play, profes-
sional and amateur, individual and community creation, rote production and
compensated hobby.
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We should pay attention to open source software because it shows us some-
thing about business methods in the digital worldindeed in the entire world
of information-based products, which is coming to include biotechnology.
The scale of your network matters. The larger the number of people who use
your operating system, make programs for your type of computer, create new
levels for your game, or use your device, the better off you are. A single fax
machine is a paperweight. Two make up a communications link. Ten million
and you have a ubiquitous communications network into which your paper-
weight is now a hugely valuable doorway.
This is the strange characteristic of networked goods. The actions of strangers
dramatically increase or decrease the usefulness of your good. At each stage the
decision of someone else to buy a fax machine increases the value of mine. If I
am eating an apple, I am indifferent about whether you are too. But if I have
a fax machine then my welfare is actually improved by the decisions of
strangers to buy one. The same process works in reverse. Buy a word processing
program that becomes unpopular, get locked in to using it, and nd your-
self unable to exchange your work easily with others. Networks matter and in-
creasing the size of the networks continues to add benets to the individual
members.
Whats true for the users of networks is doubly so for the producers of the
goods that create them. From the perspective of a producer of a good that shows
strong network effects such as a word processing program or an operating
system, the optimal position is to be the company that owns and controls the
dominant product on the market. The ownership and control is probably by
means of intellectual property rights, which are, after all, the type of property
rights one nds on networks. The value of that property depends on those
positive and negative network effects. This is the reason Microsoft is worth so
much money. The immense investment in time, familiarity, legacy docu-
ments, and training that Windows or Word users have provides a strong
incentive not to change products. The fact that other users are similarly con-
strained makes it difcult to manage any change. Even if I change word pro-
cessor formats and go through the trouble to convert all my documents, I still
need to exchange les with you, who are similarly constrained. From a
monopolists point of view, the handcuffs of network effects are indeed golden,
though opinions differ about whether or not this is a cause for antitrust action.
But if the position that yields the most revenue is that of a monopolist ex-
ercising total control, the second-best position may well be that of a company
contributing to a large and widely used network based on open standards and,
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perhaps, open software. The companies that contribute to open source do not
have the ability to exercise monopoly control, the right to extract every last
cent of value from it. But they do have a different advantage; they get the ben-
et of all the contributions to the system without having to pay for them. The
person who improves an open source program may not work for IBM or Red
Hat, but those companies benet from her addition, just as she does from
theirs. The system is designed to continue growing, adding more contribu-
tions back into the commons. The users get the benet of an ever-enlarging
network, while the openness of the material diminishes the lock-in effects.
Lacking the ability to extract payment for the network good itselfthe
operating system, saythe companies that participate typically get paid for
providing tied goods and services, the value of which increases as the network
does.
I write a column for the Financial Times, but I lack the fervor of the true
enthusiast in the Great Game of Markets. By themselves, counterintuitive
business methods do not make my antennae tingle. But as Larry Lessig and
Yochai Benkler have argued, this is something more than just another busi-
ness method. They point us to the dramatic role that opennesswhether in
network architecture, software, or contenthas had in the success of the
Internet. What is going on here is actually a remarkable corrective to the simplis-
tic notion of the tragedy of the commons, a corrective to the Internet Threat story-
line and to the dynamics of the second enclosure movement. This commons
creates and sustains value, and allows rms and individuals to benet from it,
without depleting the value already created. To appropriate a phrase from
Carol Rose, open source teaches us about the comedy of the commons, a way
of arranging markets and production that we, with our experience rooted
in physical property and its typical characteristics, at rst nd counterintu-
itive and bizarre. Which brings us to the next question for open source. Can
we use its techniques to solve problems beyond the world of software
production?
In the language of computer programmers, the issue here is does it scale?
Can we generalize anything from this limited example? How many types of
production, innovation, and research t into the model I have just described?
After all, for many innovations and inventions one needs hardware, capital
investment, and large-scale, real-world data collectionstuff, in its innite
recalcitrance and facticity. Maybe the open source model provides a work-
around to the individual incentives problem, but that is not the only
problem. And how many types of innovation or cultural production are as
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modular as software? Is open source software a paradigm case of collective
innovation that helps us to understand open source software and not
much else?
Again, I think this is a good question, but it may be the wrong one. My
own guess is that an open source method of production is far more common
than we realize. Even before the Internet (as some of my students have
taken to saying portentously), science, law, education, and musical genres all
developed in ways that are markedly similar to the model I have described.
The marketplace of ideas, the continuous roiling development in thought and
norms that our political culture spawns, owes much more to the distributed,
nonproprietary model than it does to the special case of commodied inno-
vation that we think about in copyright and patent. Not that copyright and
patent are unimportant in the process, but they may well be the exception
rather than the norm. Commons-based production of ideas is hardly unfamil-
iar, after all.
In fact, all the mottos of free software development have their counterparts
in the theory of democracy and open society; given enough eyeballs, all bugs
are shallow is merely the most obvious example. Karl Popper would have
cheered.
14
The importance of open source software is not that it introduces
us to a wholly new idea. It is that it makes us see clearly a very old idea. With
open source the technology was novel, the production process transparent,
and the result of that process was a product which outcompeted other prod-
ucts in the marketplace. How can this have happened? What about the
tragedy of the commons? we asked in puzzlement, coming only slowly to the
realization that other examples of commons-based, nonproprietary produc-
tion were all around us.
Still, this does not answer the question of whether the model can scale still
further, whether it can be applied to solve problems in other spheres. To
answer that question we would need to think more about the modularity of
other types of inventions. How much can they be broken down into chunks
suitable for distribution among a widespread community? Which forms of
innovation have some irreducible need for high capital investment in dis-
tinctly nonvirtual componentsa particle accelerator or a Phase III drug
trial? Again, my guess is that the increasing migration of the sciences toward
data- and processing-rich models makes much more of innovation and dis-
covery a potential candidate for the distributed model. Bioinformatics and
computational biology, the open source genomics project,
15
the BioBricks
Foundation I mentioned in the last chapter, the possibility of distributed data
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scrutiny by lay volunteers
16
all of these offer intriguing glances into the
potential for the future. Finally, of course, the Internet is one big experiment
in, as Benkler puts it, peer-to-peer cultural production.
17
If these questions are good ones, why are they also the wrong ones? I have
given my guesses about the future of the distributed model of innovation. My
own utopia has it ourishing alongside a scaled-down, but still powerful, in-
tellectual property regime. Equally plausible scenarios see it as a dead end
or as the inevitable victor in the war of productive processes. These are all
guesses, however. At the very least, there is some possibility, even hope, that
we could have a world in which much more of intellectual and inventive pro-
duction is free. Free as in free speech, Richard Stallman says, not free as
in free beer.
18
But we could hope that much of it would be both free of cen-
tralized control and low- or no-cost. When the marginal cost of reproduction
is zero, the marginal cost of transmission and storage approaches zero, the
process of creation is additive, and much of the labor doesnt charge, the
world looks a little different.
19
This is at least a possible future, or part of a
possible future, and one that we should not foreclose without thinking twice.
Yet that is what we are doing. The Database Protection Bills and Directives,
which extend intellectual property rights to the layer of facts;
20
the efores-
cence of software patents;
21
the UCITA-led validation of shrinkwrap licenses
that bind third parties;
22
the Digital Millennium Copyright Acts anticircum-
vention provisions
23
the point of all of these developments is not merely
that they make the peer-to-peer model difcult, but that in many cases they
rule it out altogether. I will assert this point here, rather than argue for it, but
I think it can be (and has been) demonstrated quite convincingly.
24
The point is, then, that there is a chance that a new (or old, but under-
recognized) method of production could ourish in ways that seem truly
valuablevaluable to free speech, innovation, scientic discovery, the wallets
of consumers, to what William Fisher calls semiotic democracy,
25
and, per-
haps, valuable to the balance between joyful creation and drudgery for hire.
True, it is only a chance. True, this theorys scope of operation and sustain-
ability are uncertain. But why would we want to foreclose it? That is what the
recent expansions of intellectual property threaten to do. And remember,
these expansions were dubious even in a world where we saw little or no pos-
sibility of the distributed production model I have described, where discus-
sion of network effects had yet to reach the pages of The New Yorker,
26
and
where our concerns about the excesses of intellectual property were simply the
ones that Jefferson, Madison, and Macaulay gave us so long ago.
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LEARNING FROM THE
SHARING ECONOMY
Accept for the sake of argument that the free software community actually
works, actually produces high-quality products capable of competing in the
market with proprietary alternatives. Concede for a moment that the adop-
tion of Creative Commons licenses shows there are millions of creators out
there who want to share their works with others. Many of those creators even
want to allow the world to build on their material. Indeed, let us concede that
the whole history of the Web, from Wikipedia to the obsessive and usefully
detailed sites created on everything from Vikings to shoe polishes, shows a
desire to share ones knowledge, to build on the work of others one has never
met. These efforts are remarkably varied. Some are ultimately aimed at
proteven if their results are free. Think of IBMs open source initiatives or
musicians who release Creative Commons-licensed work in order to get more
club gigs. Some are provided as a volunteer act of benevolence or civic duty,
even if they compete with expensive proprietary alternatives. Think of
Wikipedia or MITs OpenCourseWare. When the infrastructure for this col-
laboration does not exist, it gets assembledand quickly. Both the GPL and
Creative Commons are examples. Accept all of this. So what?
Lesson number one comes from the nonprot activitieseverything from
Wikipedia to Web sites created by enthusiasts. People like to create and wish
to share. In many cases they will do so without nancial reward. A surprising
amount of useful, creative, or expressive activity is generated without any -
nancial incentive at all.
Should this cause us to throw out the economic case for copyrights? No. But
it should lead us to reassess it. As I explained in Chapter 1, copyright provides
an incentive for two distinct activities. First, it offers an incentive to create the
work in the rst place. The author of Windows for Dummies or Harry Potter
gets a right to exclude others from copying the work, a right that he or she can
sell in the marketplace. The goal is to offer a nancial reason to devote time to
this particular creative activity. It is this incentive that is most often cited when
attempting to persuade policy makers to expand protection. Second, it offers
an incentive to distribute the workto typeset and print large quantities of the
work and to sell it to bookstores, or to broadcast it, or put it on movie screens.
Each medium is economically different, of course. The economics of the fea-
ture lm are different from those of the book, the magazine, or the operating
system. Thus, we have never had very good gures on the relative importance of
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these incentives. We can only guess at how much of the incentive from copy-
right goes to encouraging creation and how much to distribution. Until recently,
most types of distribution demanded higher levels of capital. The industry
structure that resulted often consisted of creators who worked as wage or con-
tract labor for distributorseither never acquiring copyright in their work in
the rst place or immediately transferring that copyright to their employers. Be-
cause distribution was expensive, our experience with material generated for fun
or out of a love of sharing was an essentially private and local one. You might
have a neighbors photocopied sheet of baking recipes that worked well at high
altitudes, or of shing techniques that worked well on a particular lake, a song
that a friend created for a special occasion, or a short story you wrote for your
kidsand then typed up for them to tell to theirs. Financial incentives were not
needed to encourage the creation of the work, but the cost of distribution dra-
matically limited its dissemination.
The single most dramatic thing that the Web has done by lowering the cost
of communication and distribution, at the same moment that other elec-
tronic tools lowered the cost of production, is to make this local and private
activity a global and public one. Someone, somewhere, will have written the
guide to shing on that lake, baking at that altitude, washing windows, or
treating stings from Portuguese man-of-war jellysh. Someone will have taken
a photo of the Duke Chapel or explained the history, economics, and chem-
istry of shoe polish or distilling. Someone might even have created a great
class on music theory or C++ programming. Someone will have written a
handy little program to manage DNS requests on a local network. Bizarrely,
at least as far as the economists were concerned, these people all wanted to
share what they had made. Because of the genius of search engines, and the
implicit peer-review function that those engines deduce from patterns of links
to pages, I can nd that material when I need it.
True, much of the material on the Web is inane or insane, confused, badly
written, tendentious, and inaccurate. (It should be noted that this is hardly a
problem conned to the Web or volunteer-generated material. Personally, I
would not want People magazine or Fox News in a time capsule to represent
my civilization. But some of the material on the Web is clearly worse.) Yes,
Wikipedia is occasionally inaccuratethough in one test in Nature it stacked
up well against the Encyclopedia Britannica, and it is obviously much more en-
cyclopedic in its coverage. But all of this misses the point.
Consider how your expectations about information retrieval have changed
in the last fteen years. We now simply assume that questions about a piece of
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architecture, a bit of local history, a recipe, or the true author of a song can all
be answered within seconds. We have forgotten what it is like to be routinely
in ignorance because of the unavailability of some piece of information. One
podcaster I talked to called it being a member of the right-click generation:
When I am walking around and I see a building, I almost feel as though I
ought to be able to right click it and have the architects name pop up.
Consider that it now seems normal for a gay Iraqi man in Baghdad to have a
blog that offers hundreds of thousands of readers around the world a literate
and touching account of the American occupation from a perspective en-
tirely different from that provided by the mainstream press.
27
We think it
normal for a person of moderate resources to be able to speak to the world
from a war zone, whether or not he is afliated with a newspaper or creden-
tialed by a corporation.
These examples are not the end of the process. Our methods of sorting,
ranking, and verifying the material generated are still evolving. They may im-
prove even beyond this point. We are only fteen years into this particular
experiment, after all. And a huge amount of this material is produced by our
fellow citizens without the prot motive.
Does this mean that we no longer need copyright or patent protection to
encourage the production and distribution of creative work? No. The shing
tips are great, but I still might buy a handsomely illustrated guide to take on
the lake with me or, even better, just stay at home and read A River Runs
Through It. The New Yorker, and not a sheaf of printouts from the Web, still
sits on my coffee table, though much of the high-quality content I read comes
to me online, for free, from strangers who are generating it for pleasure, not
prot, or who prot from open sharing, not closed control. The online blog-
osphere provides a vital counterpoint to mainstream media, but it exists in a
symbioticsome would say parasiticrelationship with that media and the
network of professional news gatherers for which it pays. Some of the most
interesting open source production methods actually rely on copyright. Even
if they did not, open source production would not sufce to run our pharma-
ceutical industry (though it might help with certain stages of the drug
discovery process).
Still, just as it would be silly to dismiss the importance of intellectual prop-
erty based on our experience of blogs and Wikipedia and open source soft-
ware, it would be equally silly to underestimate what the Web has taught us.
The Web has enabled an astonishing owering of communication and expres-
sion, an astounding democratization of creativity. We have learned just how
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strong, and how useful, is the human urge to express, communicate, invent,
and createprovided the barriers to sharing are lowered. These are the very
things that copyright and patent are supposed to encourage. For us to portray
the Webas the Internet Threat story line doesas predominantly a threat
to creativity is simply perverse. For us to base our policies only on that notion
would be a tragedy. We might end up stultifying one of the greatest explosions
of human creativity the world has ever seen by treating it as an unimportant
marginal case and instead designing our rules around the production processes
of commercial culture in the late twentieth century.
The shape of our copyright and to a lesser extent our patent system comes
from a world in which almost all large-scale distribution was an expensive,
capital-intensive enterprise. The roles of gatekeeper and nancier, producer
and assembler, distributor and advertiser, tended naturally to coalesce into
vertically integrated rms or symbiotic commercial partnerships. Those rms
were presumed to be the proxy for the public interest when it came to intel-
lectual property policy. Who would know better than they what was needed?
Occasionally, device manufacturers would provide a counterweightas in the
Sony casewhere the defense of a particular consumer freedom actually
created a market for a complementary product. Artists and authors might be
trotted out as appealing spokespersons, though the laws that were made only
sporadically reected their economic and artistic interests. Librarians and
educational institutions had inuence at the edges. Most of the time, though,
it was the assemblers and distributors of content whose voices and assump-
tions about markets would be heard.
Out of this pattern of habit and inuence, and out of much deeper notions
about authorship and invention that I have explored elsewhere, developed an
ideology, a worldview. Call it maximalism. Its proponents sincerely believed
in it and pursued it even when it did not make economic sense. (Think how
lucky the movie industry is that it lost the Sony case.) It has been the subject
of this book. Its tenets are that intellectual property is just like physical prop-
erty, that rights need to increase proportionately as copying costs decrease,
and that, in general, increasing levels of intellectual property protection will
yield increasing levels of innovation. Despite its defense of ever-increasing
government-granted monopolies, this ideology cloaks itself in the rhetoric of
free markets. The bumbling state, whose interventions in the economy nor-
mally spell disaster, turns into a scalpel-wielding genius when its monopolies
and subsidies are provided through intellectual property rights rather than
regulatory at. Above all, this way of seeing the world minimizes the impor-
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tance of creativity, expression, and distribution that takes place outside its
framework and ignores or plays down the importance of the input side of the
equationthe need to focus on the material from which culture and science
are made, as well as the protected expression and inventions made from that
raw material.
This process was notlet me stresswas not a simple process of economic
determinism or industry conspiracy. Anyone who claims that is the thesis of
this book simply has not read it. (Reviewers beware.) Let us start with eco-
nomic determinism. It was not a situation in which the law mechanistically
recorded the interests of the most economically important industries in the
area. This was the creation of a worldview, not the steely-eyed calculation of
prot and loss. Not only did many of the rules we ended up with make no
sense from the point of view of some of the largest economic players in the
areathink of the device manufacturers, the search engines, and so onthey
frequently made no sense from the perspective of those proposing them.
Attempting to twist the law to make it illegal for technology to interfere with
your old business method is frequently bad for the industry seeking the pro-
tection, as well as for the technology, the market, and the wider society.
Since this worldview makes incumbents systematically blind to prot-making
opportunities that could be secured by greater openness, rather than greater
control, it actually disables them from pursuing some of the most promising
methods by which they could have made money for their shareholders. Again,
the chapter on the Sony decision offers a salutary example.
Economic determinism does not explain the rules we have. Neither are
those rules simply a result of the manipulation of elected ofcials by incum-
bent industries through crafty campaign contributions and distorted evidence
(though to be sure, there was a lot of that as well). Many of the people who
put forward this worldviewboth lobbyists and lobbiedsincerely believe
that more rights will always lead to more innovation, that all property rights
are the same, that we do not need to think about both the input and output
sides of the equation, that cheaper copying techniques automatically require
greater protections, and so on.
What of the modest suggestions I put forward here? We could sum them
up thus: do not apply identical assumptions to physical and intellectual prop-
erty. Focus on both the inputs to and the outputs of the creative process; pro-
tecting the latter may increase the cost of the former. Look both at the role of
the public domain and the commons of cultural and scientic material and at
the need to provide incentives for creativity and distribution through exclusive
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rights. More rights will not automatically produce more innovation. Indeed,
we should conne rights as narrowly as possible while still providing the de-
sired result. Look at the empirical evidence before and after increasing the
level of protection. Pay attention to the benets as well as the costs of the new
technologies and the owering of creativity they enable.
To me, these points seem bland, boring, obviousverging on tautology or
pablum. To many believers in the worldview I have described, they are either
straightforward heresy or a smokescreen for some real, underlying agenda
which is identied as communism, anarchism, or, somewhat confusingly, both.
This account smacks of exaggeration, I know. How could things be so one-
sided? The best answer I can give came from a question I was asked at a recent
conference. The questioner pointed out politely that it was unlikely that the
policy-making process would ignore such a fundamental and obvious set of
pointspoints that I myself observed had been well understood for hundreds
of years. I had used many examples of intellectual property rights being
extendedin length, breadth, scope. Why had I not spoken, he asked, of all
the times over the last fty years when intellectual property rights had been
weakened, curtailed, shortened? Since human beings were fallible, surely there
were occasions when the length of a copyright or patent term had proved to
be too long, or the scope of a right too large, and the rights had been narrowed
appropriately by legislation. Why did I not cite any of these? The answer is
simple. To the best of my knowledge, there are none. Legislatively, intellectual
property rights have moved only in one directionoutward. (Court decisions
present a more complex picture, as the previous chapters discussion of soft-
ware copyrights and business method patents shows.)
What are the odds that the costs of new technologies are always greater
than their benets as far as intellectual property rights holders are concerned?
This pattern is not a matter of policies carefully crafted around the evidence.
It is the fossil record of fty years of maximalism. If I lean toward the other
side of the story it is not because I am a foe of intellectual property. It is
because I believe our policies have become fundamentally unbalanced
unbalanced in ways that actually blind us to what is going on in the world of
creativity.
We are living through an existence-proof that there are other methods of
generating innovation, expression, and creativity than the proprietary, exclu-
sionary model of sole control. True, these methods existed before. Yet they
tended to be local or invisible or both. The Internet has shown conclusively
and visibly thatat least in certain sectorswe can have a global owering of
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creativity, innovation, and information sharing in which intellectual property
rights function in a very different way than under the standard model of pro-
prietary control. In some cases, intellectual property rights were simply
irrelevantmuch of the information sharing and indexing on the Web falls
within this category. In some cases they were used to prevent exclusivity.
Think of Creative Commons or the General Public License. In some, they
were actually impediments. Software patents, for example, have a negative
effect on open source software developmentone that policy makers are only
now slowly beginning to acknowledge.
It is important not to overstate how far the sharing economy can get us. It
might help to cut the costs of early-stage drug development, as the Tropical
Disease Initiative attempts to do for neglected diseases. It will not generate a
Phase III drug trial or bring a drug to market. Sharing methods might be used
to generate cult movies such as Star Wreck: In the Pirkinning, which was created
using techniques borrowed from open source software and is available under
a Creative Commons license. They will not produce a mammoth blockbuster
like Ben Hur, or Waterworld for that matterresults that will generate mixed
feelings. So there are real limitations to the processes I describe.
But even acknowledging those limitations, it is fair to say that one of the
most striking events to occur during our lifetimes is the transformation
wrought by the Web, a transformation that is partly driven by the extraordi-
nary explosion of nonproprietary creativity and sharing across digital networks.
The cultural expectation that a web of expression and information will just
be therewhatever subject we are discussingis a fundamental one, the one
that in some sense separates us from our children. With this as a background
it is both bizarre and perverse that we choose to concentrate our policy mak-
ing only on maintaining the business methods of the last century, only on
the story line of the Internet Threat, only on the dangers that the technology
poses to creativity (and it does pose some) and never on the benets.
What would it mean to pay attention to the changes I have described? It
would mean assessing the impact of rules on both proprietary and nonpro-
prietary production. For example, if the introduction of a broad regime of
software patents would render open source software development more dif-
cult (because individual contributors cannot afford to do a patent search
on every piece of code they contribute), then this should be reected as a
cost of software patents, to be balanced against whatever benets the system
brought. A method for encouraging innovation might, in fact, inhibit one
form of it.
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Paying attention to the last ten years means we need to realize that nonpro-
prietary, distributed production is not the poor relation of traditional propri-
etary, hierarchically organized production. This is no hippy lovefest. It is the
business method on which IBM has staked billions of dollars; the method of
cultural production that generates much of the information each of us uses
every day. It is just as deserving of respect and the solicitude of policy makers
as the more familiar methods pursued by the lm studios and proprietary
software companies. Losses due to sharing that failed because of articially
erected legal barriers are every bit as real as losses that come about because of
illicit copying. Yet our attention goes entirely to the latter.
The main thrust of the argument here is still rmly within the Jeffersonian,
Scottish Enlightenment tradition. Jefferson does not wish to give the patent to
Oliver Evans because he believes the invention will be (and has been) generated
anyway without the granting of an intellectual property right and that there are
sufcient information retrieval methods to have practical access to it. In this case,
the information retrieval method is not Google. It is a polymath genius combing
his library in Monticello for references to Persian irrigation methods. The
embarrassment caused by the unnecessary patent is added expense and bu-
reaucracy in agriculture and impediments to further innovators, not the un-
dermining of open source software. But it is the same principle of cautious
minimalism, the same belief that much innovation goes on without proprietary
control and that intellectual property rights are the exception, not the rule.
When Benjamin Franklin, a man who surely deserved patents under even the
most stringent set of tests, chooses to forgo them because he has secured so much
benet from the contributions of others, he expresses Shirkys norm nicely.
Indeed, Jeffersons optimism depends partly on a view of information shar-
ing that captures beautifully the attitudes of the generation that built the
Web. The letter that I discussed in Chapter 2 was widely cited for precisely
this reason. Remember these lines?
That ideas should freely spread from one to another over the globe, for the moral
and mutual instruction of man, and improvement of his condition, seems to have
been peculiarly and benevolently designed by nature, when she made them, like
re, expansible over all space, without lessening their density in any point, and like
the air in which we breathe, move, and have our physical being, incapable of con-
nement or exclusive appropriation.
What could encapsulate better the process by which information spreads on a
global network? What could more elegantly state the norms of the information
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wants to be free generation? (Though those who quoted him conveniently
omitted the portions of his analysis where he concedes that there are cases
where intellectual property rights may be necessary and desirable.)
In some ways, then, the explosion of nonproprietary and, in many cases,
noncommercial creativity and information sharing is simply the vindication
of Jeffersons comparison of ideas with re . . . expansible over all space.
The Web makes the simile a reality and puts an exclamation point at the end
of the Jefferson Warning. All the more reason to pay attention to it. But the
creative commons I described here goes further. It forces us to reconceptualize
a form of life, a method of production, and a means of social organization
that we used to relegate to the private world of informal sharing and collabo-
ration. Denied a commons by bad intellectual property rules, we can sometimes
build our ownwhich may in some ways do even more for us than the zone of
free trade, free thought, and free action that Jefferson wished to protect.
Does all this mean that the Jefferson Warning is no longer necessary? Can
we mitigate the negative effects of intellectual property expansion through a
series of privately constructed commons? The answers to those questions are,
respectively, no and sometimes. Think of the story of retrospectively ex-
tended copyright and orphan works. In many cases the problem with our
intellectual property rights is that they create barriers to sharingwithout
producing an incentive in returnin ways that can never be solved through
private agreement. Twentieth century culture will largely remain off-limits for
digitization, reproduction, adaptation, and translation. No series of private
contracts or licenses can x the problem because the relevant parties are not in
the room and might not agree if they were.
Even when the parties are available and agree to share, the benets may not
ow to all equally. Beset by a multitude of vague patents of questionable worth
and uncertain scope, large information technology rms routinely create
patent pools. IBM tosses in thousands of patents, so does Hewlett or Dell.
Each agrees not to sue the other. This is great for the established companies;
they can proceed without fear of legal action from the landmine patents that
litter the technological landscape. As far as the participants are concerned, the
patent pool is almost like the public domainbut a privatized public domain,
a park that only residents may enter. But what about the start up company that
does not have the thousands of patents necessary for entry? They are not in as
happy a situation. The patent pool xes the problem of poor patent quality
and unclear scopeone that Jefferson was worrying about 200 years ago. But
it xes it only for the dominant rms, hurting competition in the process.
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Attempts to form a commons may also backre. The coordination prob-
lems are legion. There are difculties of compatibility in licenses and the pro-
cess, no matter how easy, still imposes transaction costs. Nevertheless, with all
of these qualications, the idea of the privately created commons is an impor-
tant addition to the world view that Jefferson provided, a new tool in our
attempt to craft a working system of innovation and culture. No one who
looks at the Web can doubt the power of distributed, and frequently uncom-
pensated, creativity in constructing remarkable reference works, operating
systems, cultural conversations, even libraries of images and music. Some of
that innovation happens largely outside of the world of intellectual property.
Some of it happens in privately created areas of sharing that use property
rights and open, sometimes even machine-readable, licenses to create a com-
mons on which others can build. The world of creativity and its methods is
wider than we had thought. That is one of the vital and exciting lessons the
Internet teaches us; unfortunately, the only one our policy makers seem to
hear is cheaper copying means more piracy.
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9
An Evidence-Free Zone
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Perhaps some of the arguments in this book have convinced you.
Perhaps it is a mistake to think of intellectual property in the same
way we think of physical property. Perhaps limitations and excep-
tions to those rights are as important as the rights themselves. Per-
haps the public domain has a vital and tragically neglected role to
play in innovation and culture. Perhaps relentlessly expanding prop-
erty rights will not automatically bring us increased innovation in
science and culture. Perhaps the second enclosure movement is more
troubling than the rst. Perhaps it is unwise to extend copyright again
and again, and to do so retrospectively, locking up most of twentieth-
century culture in order to protect the tiny fragment of it that is still
commercially available. Perhaps technological improvements bring
both benets and costs to existing rights holdersboth of which
should be considered when setting policy. Perhaps we need a vigor-
ous set of internal limitations and exceptions within copyright, or
control over content will inevitably become control over the medium
of transmission. Perhaps the Internet should make us think seriously
about the power of nonproprietary and distributed production.
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Saying all this gives us some guidance in how we should think. It points out
certain patterns of error. But its prescriptions are not simple. Precisely because
it is not a rejection of intellectual property rights, but rather a claim that they
only work well through a process of consciously balancing openness and con-
trol, public domain and private right, it still leaves open the question of where
that point of balance is and how to strike it.
In this chapter I want to offer a suggestion that in any other eld would be
stunningly obvious, boring even, but in the funhouse mirror of intellectual
property appears revolutionary. We should make our policy based on empirical
evidence of its likely effects and there should be a formal requirement of
empirical reconsideration of those policies after they have been implemented
to see if they are working. Why is this a good idea?
Imagine a process of reviewing prescription drugs that goes like this: repre-
sentatives from the drug company come to the regulators and argue that their
drug works well and should be approved. They have no evidence of this
beyond a few anecdotes about people who want to take it and perhaps some
very simple models of how the drug might affect the human body. The drug
is approved. No trials, no empirical evidence of any kind, no follow-up. Or
imagine a process of making environmental regulations in which there were
no data, and no attempts to gather data, about the effects of the particular
pollutants being studied. Even the harshest critics of regulation would admit
we generally do better than this. But this is often the way we make intellectual
property policy.
So how do we decide the ground rules of the information age? Representa-
tives of interested industries come to regulators and ask for another heaping
slice of monopoly rent in the form of an intellectual property right. They have
doom-laden predictions, they have anecdotes, carefully selected to pluck the
heartstrings of legislators, they have celebrities who testifyoften incoher-
ently, but with palpable charismaand they have very, very simple economic
models. The basic economic model here is If you give me a larger right, I will
have a larger incentive to innovate. Thus the bigger the rights, the more inno-
vation we will get. Right?
As I have tried to show here using the words of Jefferson and Macaulay and
examples such as term extension, software copyrights, and garage door openers,
this logic is fallacious. Even without data, the more is better idea is obviously
flawed. Copyrighting the alphabet will not produce more books. Patenting
E=mc
2
will not yield more scientic innovation. Intellectual property creates
barriers to, as well as incentives toward, innovation. Jefferson agonized over
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the issue of when the benets exceed the costs of a new right. I know well the
difculty of drawing a line between the things which are worth to the public
the embarrassment of an exclusive patent, and those which are not. It is not
clear that contemporary policy makers approach issues with anything like the
same sophistication or humility. But it would be an equal mistake to con-
clude, as some do, that expansions of intellectual property are never justied.
Extensions of rights can help or hurt, but without economic evidence before-
hand and review afterward, we will never know. This point should be obvious,
banal, even deeply boring, but sadly it is not.
From Jefferson and Macaulay and Adam Smith, I derived a second point.
In the absence of evidence on either side, the presumption should be against
creating a new, legalized monopoly. The burden of proof should lie on those
who claim, in any particular case, that the state should step in to stop compe-
tition, outlaw copying, proscribe technology, or restrict speech. They have to
show us that the existing protection is not enough. But this presumption is a
second-best solution and the empirical emptiness of the debates frustrating.
This makes an occasion where there is some evidence a time for celebration.
What we need is a test case in which one country adopts the proposed new
intellectual property right and another similarly situated country does not,
and we can assess how they are both doing after a number of years.
There is such a case. It is the database right.
OWNING FACTS?
Europe adopted a Database Directive in 1996 which gave a high level of copy-
right protection to databases and conferred a new sui generis database right
even on unoriginal compilations of facts. In the United States, by contrast,
in a 1991 case called Feist Publications, Inc. v. Rural Telephone Service Co., 499
U.S. 340 (1991), the Supreme Court made it clear that unoriginal compila-
tions of facts are not copyrightable.
What does all this mean? Take the phone directorythat was the product
at issue in the Feist case. A white pages directory is a database of names and
numbers, compiled in alphabetical order by name. Does anyone have an
intellectual property right over it? Not the particular dog-eared directory lying
next to your phone. Does the phone company that compiled it own the facts,
the numbers inside that directory? Could they forbid me from copying them,
adding others from surrounding areas, and issuing a competing directory that
I believed consumers would nd more valuable? This was an important issue
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for Feist because it went to the heart of their business. They issued regional
telephone directories, combining records from multiple phone companies. In
this case, all the other companies in the region agreed to license their data to
Feist. Rural did not, so Feist copied the information, checked as many entries
as possible, adding addresses to some of the listings, and published the com-
bined result. Rural sued and lost. The Supreme Court declared that mere
alphabetical listings and other unoriginal assemblies of data cannot be
copyrighted.
It may seem unfair that much of the fruit of the compilers labor may be used by
others without compensation. As Justice Brennan has correctly observed, however,
this is not some unforeseen byproduct of a statutory scheme. It is, rather, the
essence of copyright, and a constitutional requirement. The primary objective
of copyright is not to reward the labor of authors, but to promote the Progress of
Science and useful Arts. To this end, copyright assures authors the right to their
original expression, but encourages others to build freely upon the ideas and in-
formation conveyed by a work. This principle, known as the idea/expression or
fact/expression dichotomy, applies to all works of authorship. As applied to a factual
compilation, assuming the absence of original written expression, only the com-
pilers selection and arrangement may be protected; the raw facts may be copied at
will. This result is neither unfair nor unfortunate. It is the means by which copy-
right advances the progress of science and art.
1
Feist was not as revolutionary as some critics claimed it to be. Most of the
appeals courts in the United States had long held this to be the case. As the
Court pointed out in the passage above, it is a fundamental tenet of the U.S.
intellectual property system that neither facts nor ideas can be owned. Feist
merely reiterated that point clearly and stressed that it was not just a policy
choice, it was a constitutional requirementa limit imposed by the Constitu-
tions grant of power to Congress to make copyright and patent laws.
Daily politics cares little for the limitations imposed by constitutions or for
the structural principle the Court describesthat we should leave facts free
for others to build upon. Since 1991, a few database companies have lobbied
the Congress strenuously and continuously to create a special database right
over facts. Interestingly, apart from academics, scientists, and civil libertarians,
many database companies, and even those well-known property haters, the
U.S. Chamber of Commerce, oppose the creation of such a right. They be-
lieve that database providers can adequately protect themselves with contracts
or technical means such as passwords, can rely on providing tied services, and
so on. Moreover, they argue that strong database protection may make it
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harder to generate databases in the rst place; the facts you need may be
locked up. We need to focus on the inputs as well as the outputs of the
processa point I have tried to make throughout this book. The pressure to
create a new right continues, however, aided by cries that the United States
must harmonize with Europe, where, you will remember, compilations of
facts are strongly protected by intellectual property rights, even if their
arrangement is unoriginal.
So here we have our natural experiment. One major economy rejects such
protection and resists pressure to create a new right. A different major economic
region, at a comparable level of development, institutes the right with the
explicit claim that it will help to produce new databases and make that seg-
ment of the economy more competitive. Presumably government economists
in the United States and the European Union have been hard at work ever
since, seeing if the right actually worked? Well, not exactly.
Despite the fact that the European Commission has a legal obligation to re-
view the Database Directive for its effects on competition, it was more than
three years late issuing its report. At rst, during the review process, no atten-
tion was paid to the actual evidence of whether the Directive helps or hurts
the European Union, or whether the database industry in the United States
has collapsed or ourished. That is a shame, because the evidence was there
and it was fairly shocking. Yet nally, at the end of the process, the Commis-
sion did turn to the evidence, as I will recount, and came to a remarkable
conclusionwhich was promptly stied for political reasons. But we are
getting ahead of ourselves.
How do we frame the empirical inquiry? Intellectual property rights allow
the creation of state-backed monopolies, and the general tendency of monop-
olies, as Macaulay pointed out, is to make articles scarce, to make them
dear, and to make them bad. Monopolies are an evil, but they must some-
times be accepted when they are necessary to the production of some good,
some particular social goal. In this case, the evil is obviously going to be an
increase in the price of databases and the legal ability to exclude competitors
from their usethat, after all, is the point of granting the new right. This
right of exclusion may then have dynamic effects, hampering the ability of
subsequent innovators to build on what went before. The good is that we
are supposed to get lots of new databases, databases that we would not have
had but for the existence of the database right.
If the database right were working, we would expect positive answers to
three crucial questions. First, has the European database industrys rate of
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growth increased since 1996, while the U.S. database industry has languished?
(The drop-off in the U.S. database industry ought to be particularly severe
after 1991 if the proponents of database protection are correct; they argued the
Feist case was a change in current law and a great surprise to the industry.)
Second, are the principal beneciaries of the database right in Europe pro-
ducing databases they would not have produced otherwise? Obviously, if a
society is handing over a database right for a database that would have been
created anyway, it is overpayingneedlessly increasing prices for consumers
and burdens for competitors. This goes to the design of the righthas it been
crafted too broadly, so that it is not being targeted to those areas where it is
needed to encourage innovation?
Third, and this one is harder to judge, is the new right promoting innovation
and competition rather than stiing it? For example, if the existence of the
right allowed a one-time surge of newcomers to the market who then use their
rights to discourage new entrants, or if we promoted some increase in data-
bases but made scientic aggregation of large amounts of data harder overall,
then the database right might actually be stiing the innovation it is designed
to foment.
Those are the three questions that any review of the Database Directive
must answer. But we have preliminary answers to those three questions and
they are either strongly negative or extremely doubtful.
Are database rights necessary for a thriving database industry? The answer
appears to be no. In the United States, the database industry has grown more
than twenty-ve-fold since 1979 andcontrary to those who paint the Feist
case as a revolutionfor that entire period, in most of the United States, it
was clear that unoriginal databases were not covered by copyright. The gures
are even more interesting in the legal database market. The two major propo-
nents of database protection in the United States are Reed Elsevier, the owner
of Lexis, and Thomson Publishing, the owner of Westlaw. Fascinatingly, both
companies made their key acquisitions in the U.S. legal database market after
the Feist decision, at which point no one could have thought unoriginal data-
bases were copyrightable. This seems to be some evidence that they believed
they could make money even without a database right. How? In the old-
fashioned way: competing on features, accuracy, tied services, making users
pay for entry to the database, and so on.
If those companies believed there were prots to be made, they were right.
Jason Gelman, a former Duke student, pointed out in a recent paper that
Thomsons legal regulatory division had a prot margin of over 26 percent for
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the rst quarter of 2004. Reed Elseviers 2003 prot margin for LexisNexis
was 22.8 percent. Both prot margins were signicantly higher than the com-
pany average and both were earned primarily in the $6 billion U.S. legal data-
base market, a market which is thriving without strong intellectual property
protection over databases. (First rule of thumb for regulators: when someone
with a prot margin over 20 percent asks you for additional monopoly pro-
tection, pause before agreeing.)
What about Europe? There is some good news for the proponents of data-
base protection. As Hugenholtz, Maurer, and Onsrud point out in a nice arti-
cle in Science magazine, there was a sharp, one-time spike in the number of
companies entering the European database market immediately following
the implementation of the Directive in member states.
2
Yet their work, and
Across Two Worlds,
3
a fascinating study by Maurer, suggests that the rate of
entry then fell back to levels similar to those before the directive. Maurers
analysis shows that the attrition rate was also very high in some European
markets in the period following the passage of the directiveeven with the
new right, many companies dropped out.
At the end of the day, the British database industrythe strongest per-
former in Europeadded about two hundred databases in the three years im-
mediately after the implementation of the directive. In France, there was little
net change in the number of databases and the number of providers fell
sharply. In Germany, the industry added nearly three hundred databases im-
mediately following the directivea remarkable surgeabout two hundred
of which rapidly disappeared. During the same period, the U.S. industry
added about nine hundred databases. Bottom line? Europes industry did get
a one-time boost and some of those rms have stayed in the market; that is a
benet, though a costly one. But database growth rates have gone back to pre-
directive levels, while the anticompetitive costs of database protection are now
a permanent xture of the European landscape. The United States, by contrast,
gets a nice steady growth rate in databases without paying the monopoly cost.
(Second rule of thumb for regulators: Do no harm! Do not create rights with-
out strong evidence that the incentive effect is worth the anticompetitive cost.)
Now the second question. Is the Database Directive encouraging the pro-
duction of databases we would not have gotten otherwise? Here the evidence
is clear and disturbing. Again, Hugenholtz et al. point out that the majority
of cases brought under the directive have been about databases that would
have been created anywaytelephone numbers, television schedules, concert
times. A review of more recent cases reveals the same pattern. These databases
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are inevitably generated by the operation of the business in question and cannot
be independently compiled by a competitor. The database right simply serves
to limit competition in the provision of the information. Recently, the European
Court of Justice implicitly underscored this point in a series of cases concern-
ing football scores, horse racing results, and so on. Rejecting a protectionist
and one-sided opinion from its Advocate General, the court ruled that the
mere running of a business which generates data does not count as substan-
tial investment sufcient to trigger the database right. It would be nice to
think that this is the beginning of some skepticism about the reach of the di-
rective. Yet the court provides little discussion of the economic reasons behind
its interpretation; the analysis is merely semantic and denitional, a sharp
contrast to its competition decisions.
So what kinds of creations are being generated by this bold new right? The
answer is somewhere between bathos and pathos. Here are some of the won-
derful databases that people found it worthwhile litigating over: a Web site
consisting of a collection of 259 hyperlinks to parenting resources, a collec-
tion of poems, an assortment of advertisements, headings referring to local
news, and charts of popular music. The sad list goes on and on. The Europe-
an Commission might ask itself whether these are really the kind of data-
bases that we need a legal monopoly to encourage and that we want to tie up
judicial resources protecting. The point that many more such factual resources
can be found online in the United States without any legalized database pro-
tection also seems worthy of note. At the very least, the evidence indicates
that the right is drawn much too broadly and triggered too easily in ways that
produce litigation but little social benet.
Now, in one sense, these lawsuits over trivial collections of hyperlinks and
headlines might be seen as irrelevant. They may indicate we are handing out
rights unnecessarilydid we really need a legal monopoly, and court involve-
ment, to get someone to compile hyperlinks on a Web page? But it is hard to
see social harm. As with the patents over sealed crustless peanut butter sand-
wiches or methods of swinging on a swing, we may shake our heads at the
stupidity of the system, but if the problems consist only of trivial creations, at
least we are not likely to grieve because some vital piece of information was
locked up. But we should not be so quick to declare such examples irrelevant.
They tend to show that the system for drawing the boundaries of the right is
brokenand that is of general concern, even if the issue at hand is not.
Finally, is the database right encouraging scientic innovation or hurting it?
Here the evidence is merely suggestive. Scientists have claimed that the Euro-
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pean database right, together with the perverse failure of European govern-
ments to take advantage of the limited scientic research exceptions allowed
by the directive, have made it much harder to aggregate data, to replicate stud-
ies, and to judge published articles. In fact, academic scientic bodies have been
among the strongest critics of database protection. But negative evidence, by
its nature, is hard to produce; show me the science that did not get done!
Certainly, both U.S. science and commerce have beneted extraordinarily
from the openness of U.S. data policy. I will deal with this issue in the next
part of this chapter.
If the United States does not give intellectual property protection to raw
data, to facts, how is it that the database industry has managed to thrive here
and to do better than in Europe, which has extremely strong protection? The
economists described in Chapter 1 would surely tell us that this is a potential
public goods problem. If it is hard to exclude others from the resourceit
is cheap and easy to copyand if the use of the resource is not rivalif I
dont use up your facts by consulting themthen we ought to see the kind of
dystopia economists predict. What would that consist of? First it might result
in underproduction. Databases with a social value higher than their cost of
creation would not get made because the creator could not get an adequate
return on investment. In some cases it might even lead to the reverse
overproduction, where each party creates the database for itself. We get a so-
cial overinvestment to produce the resource because there is no legal right to
exclude others from it. If you gave the rst creator an intellectual property
right over the data, they could sell to subsequent users at a price lower than
their own cost to create the database. Everyone would win. But the United
States did not give the intellectual property right and yet its database industry
is ourishing. There are lots of commercial database providers and many dif-
ferent kinds of databases. How can this be? Is the economic model wrong?
The answer to that is no, the model is not wrong. It is, however, incom-
plete and all too often applied in sweeping ways without acknowledging that
its basic assumptions may not hold in a particular case. That sounds vague.
Let me give a concrete example. Westlaw is one of the two leading legal data-
base providers and, as I mentioned before, one of the key proponents of creat-
ing intellectual property rights over unoriginal databases. (There is considerable
question whether such a law would be constitutional in the United States, but
I will pass over that argument for the moment.) Westlaws problem is that
much of the material that it provides to its subscribers is not covered by copy-
right. Under Section 105 of the U.S. Copyright Act, works of the federal
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government cannot be copyrighted. They pass immediately into the public
domain. Thus all the federal court decisions, from district courts all the way
up to the Supreme Court, all the federal statutes, the innite complexity of
the Federal Register, all this is free from copyright. This might seem logical for
government-created work, for which the taxpayer has already paid, but as I
will explain in the next section of the chapter, not every country adopts such
a policy.
West, another Thomson subsidiary that owns Westlaw, publishes the stan-
dard case reporter series. When lawyers or judges refer to a particular opinion,
or quote a passage within an opinion, they will almost always use the page
number of the West edition. After all, if no one else can nd the cases or
statutes or paragraphs of an opinion that you are referring to, legal argument
is all but impossible. (This might seem like a great idea to you. I beg to differ.)
As electronic versions of legal materials became more prevalent, West began
getting more competition. Its competitors did two things that West found un-
forgivable. First, they frequently copied the text of the cases from Wests elec-
tronic services, or CD-ROMs, rather than retyping them themselves. Since
the cases were works of the federal government, this was perfectly legal pro-
vided the competitors did not include Wests own material, such as summaries
of the cases written by its employees or its key number system for nding re-
lated issues. Second, the competitors would include, within their electronic
editions, the page numbers to Wests editions. Since lawyers need to cite the
precise words or arguments they are referring to, providing the raw opinion
alone would have been all but useless. Because Wests page numbers were one
of the standard ways to cite case opinions, competitors would indicate where
the page breaks on the printed page would have been, just as West did in its
own databases.
Wests reaction to all of this was exactly like Apples reaction in the story I
told in Chapter 5 about the iPod or like Rurals reaction to the copying of its
phone directory. This was theft! They were freeloading on Wests hard work!
West had mixed its sweat with these cites, and so should be able to exclude
other people from them! Since it could not claim copyright over the cases,
West claimed copyright over the order in which they were arranged, saying
that when its competitors provided its page numbers for citation purposes,
they were infringing that copyright.
In the end, West lost its legal battles to claim copyright over the arrange-
ment of the collections of cases and the sequence in which they were pre-
sented. The Court held that, as with the phone directory, the order in which
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the cases were arranged lacked the minimum originality required to sustain a
copyright claim.
4
At this stage, according to the standard public goods story,
Wests business should have collapsed. Unable to exclude competitors from
much of the raw material of its databases, West would be undercut by com-
petitors. More importantly, from the point of view of intellectual property
policy, its fate would deter potential investors in other databasesdatabases
that we would lose without even knowing they could have been possible. Ex-
cept that is not the way it turned out. West has continued to thrive. Indeed,
its prots have been quite remarkable. How can this be?
The West story shows us three ways in which we can leap too quickly
from the abstract claim that some information goods are public goods
nonexcludable and nonrivalto the claim that this particular information
good has those attributes. The reality is much more complex. Type www
.westlaw.com into your Internet browser. That will take you to the home page
of Wests excellent legal research service. Now, I have a password to that site.
You probably do not. Without a password, you cannot get access to Wests site
at all. To the average consumer, the password acts as a physical or technical bar-
rier, making the good excludablethat is, making it possible to exclude
someone from it without invoking intellectual property rights. But what about
competitors? They could buy access and use that access to download vast quan-
tities of the material that is unprotected by copyright. Or could they? Again,
West can erect a variety of barriers, ranging from technical limits on how much
can be downloaded to contractual restrictions on what those who purchase its
service can do (No copying every federal case, for example).
Lets say the competitor somehow manages to get around all this. Lets say
it somehow avoids copying the material that West does have a copyright
oversuch as the headnotes and case synopses. The competitor launches
their competing site at lower prices amidst much fanfare. Do I immediately
and faithlessly desert West for a lower-priced competitor? Not at all. First of
all, there are lots of useful things in the West database that are covered by
copyrightlaw review articles and certain treatises, for example. The com-
petitor frequently cannot copy those without coming to the same sort of
agreements that West has with the copyright holders. For much legal research,
that secondary material is as important as the cases. If West has both, and the
competitor only one, I will stick with West. Second, Wests service is very well
designed. (It is only their copyright policies I dislike, not the product.) If a
judge cites a law review article in a case, West will helpfully provide a hyper-
link to the precise section of the article she is referring to. I can click on it and
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in a second see what the substance of the argument is. The reverse is true if
a law review article cites a statute or a case. Cases have ags on them indicat-
ing whether they have been overruled or cited approvingly in subsequent de-
cisions. In other words, faced with the competitive pressure of those who would
commoditize their service and provide it at lower cost, West has done what
any smart company would: added features and competed by offering a supe-
rior service. Often it has done so by tying its uncopyrightable data struc-
tures to its huge library of copyrighted legal material.
The company that challenged Westlaw in court was called Hyperlaw. It won
triumphantly. The courts declared that federal cases and the page numbers in
the West volumes were in the public domain. That decision came in 1998 and
Westlaw has lobbied hard since then to reverse it by statute, to create some
version of the Database Directive in the United States. To date, they have
failed. The victor, Hyperlaw, has since gone out of business. Westlaw has not.
This little story contains a larger truth. It is true that innovation and informa-
tion goods will, in general, tend to be less excludable and less rival than a ham
sandwich, say. But, in practice, some of them will be linked or connected in their
social setting to other phenomena that are highly excludable. The software can
easily be copiedbut access to the help lines can be restricted with ease. Au-
diences cannot easily be excluded from viewing television broadcasts, but
advertisers can easily be excluded from placing their advertisements in those pro-
grams. The noncopyrightable court decisions are of most use when embedded
within a technical system that gives easy access to other materialsome of it
copyrighted and all of it protected by technical measures and contractual restric-
tions. The music le can be downloaded; the bands T-shirt or the experience of
the live concert cannot. Does this mean that we never need an intellectual prop-
erty right? Not at all. But it does indicate that we need to be careful when some-
one claims that without a new intellectual property right I am doomed.
One nal story may drive home the point. When they read Feist v. Rural,
law students often assume that the only reason Feist offered to license the
white pages listings from Rural is because they (mistakenly) thought they were
copyrighted. This is unlikely. Most good copyright lawyers would have told
you at the time of the Feist case that the sweat of the brow decisions that
gave copyright protection based on hard work were not good law. Most courts
of appeals had said so. True, there was some legal uncertainty, and that is of-
ten worth paying to avoid. But switch the question around and suppose it is
the day after the Supreme Court decides the Feist case, and Feist is heading off
into another market to try to make a new regional phone directory. Do they
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now just take the numbers without paying for them, or do they still try to
negotiate a license? The latter is overwhelmingly likely. Why? Well, for one
thing, they would get a computer-readable version of the names and would
not have to retype or optically scan them. More importantly, the contract
could include a right to immediate updates and new listings.
The day after the Feist decision, the only thing that had changed in the tele-
phone directory market was that telephone companies knew for sure, rather
than merely as a probability, that if they refused to license, their competitors
could laboriously copy their old listings without penalty. The nuclear option
was no longer available. Maybe the price demanded would be a little lower.
But there would still be lots of good reasons for Feist to buy the information,
even though it was uncopyrighted. You do not always need an intellectual
property right to make a deal. Of course, that is not the whole story. Perhaps
the incentives provided by other methods are insufcient. But in the U.S.
database industry they do not seem to have been. Quite the contrary. The
studies we have on the European and the American rules on database rights
indicate that the American approach simply works better.
I was not always opposed to intellectual property rights over data. Indeed,
in a book written before the enactment of the Database Directive, I said that
there was a respectable economic argument that such protection might be
warranted and that we needed research on the issue.
5
Unfortunately, Europe
got the right without the research. The facts are now in. If the European Data-
base Directive were a drug, the government would be pulling it from the mar-
ket until its efcacy and harmfulness could be reassessed. At the very least, the
Commission needed a detailed empirical review of the directives effects, and
needs to adjust the directives denitions and ne-tune its limitations. But
there is a second lesson. There is more discussion of the empirical economic
effects of the Database Directive in this chapter than in the six-hundred-page
review of the directive that the European Commission paid a private company
to conduct, and which was the rst ofcial document to consider the issue.
That seemed to me and to many other academics to be a scandal and we
said so as loudly as we could, pointing out the empirical evidence suggesting
that the directive was not working. Yet if it was a scandal, it was not a surpris-
ing one, because the evidence-free process is altogether typical of the way we
make intellectual property policy. President Bush is not the only one to make
faith-based decisions.
There was, however, a ray of hope. In its ofcial report on the competitive
effects of the Database Directive, the European Commission recently went
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beyond reliance on anecdote and industry testimony and did something
amazing and admirable. It conducted an empirical evaluation of whether the
directive was actually doing any good.
The report honestly described the directive as a Community creation with
no precedent in any international convention. Using a methodology similar
to the one in this chapter on the subject, the Commission found that the eco-
nomic impact of the sui generis right on database production is unproven.
Introduced to stimulate the production of databases in Europe, the new in-
strument has had no proven impact on the production of databases.
6
In fact, their study showed that the production of databases had fallen to
pre-directive levels and that the U.S. database industry, which has no such in-
tellectual property right, was growing faster than the European Unions. The
gap appears to be widening. This is consistent with the data I had pointed out
in newspaper articles on the subject, but the Commissions study was more re-
cent and, if anything, more damning.
Commission insiders hinted that the study may be part of a largerand
welcometransformation in which a more professional and empirical look is
being taken at the competitive effects of intellectual property protection.
Could we be moving away from faith-based policy in which the assumption is
that the more new rights we create, the better off we will be? Perhaps. But un-
fortunately, while the report was a dramatic improvement, traces of the Com-
missions older predilection for faith-based policy and voodoo economics still
remain.
The Commission coupled its empirical study of whether the directive had
actually stimulated the production of new databases with another intriguing
kind of empiricism. It sent out a questionnaire to the European database in-
dustry asking if they liked their intellectual property righta procedure with
all the rigor of setting farm policy by asking French farmers how they feel
about agricultural subsidies. More bizarrely still, the report sometimes juxta-
posed the two studies as if they were of equivalent worth. Perhaps this
method of decision making could be expanded to other areas. We could set
communications policy by conducting psychoanalytic interviews with state
telephone companieslet current incumbents opinions determine what is
good for the market as a whole. What is your emotional relationship with
your monopoly? I really like it! Do you think it hurts competition?
Not at all!
There are also a few places where the reasoning in the report left one
scratching ones head. One goal of the database right was to help close the gap
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between the size of the European and U.S. database markets. Even before the
directive, most European countries already gave greater protection than the
United States to compilations of fact. The directive raised the level still higher.
The theory was that this would help build European market share. Of course,
the opposite is also possible. Setting intellectual property rights too high can
actually stunt innovation. In practice, as the Commissions report observes,
the ratio of European/ U.S. database production, which was nearly 1:2 in
1996, has become 1:3 in 2004.
7
Europe had started with higher protection
and a smaller market. Then it raised its level of protection and lost even more
ground. Yet the report was oddly difdent about the possibility that the U.S.
system actually works better.
In its conclusion, the report offered a number of possibilities, including re-
pealing the directive, amending it to limit or remove the sui generis right
while leaving the rest of the directive in place, and keeping the system as it is.
The rst options are easy to understand. Who would want to keep a system
when it is not increasing database production, or European market share, and,
indeed, might be actively harmful? Why leave things as they are? The report
offers several reasons.
First, database companies want to keep the directive. (The report delicately
notes that their endorsement . . . is somewhat at odds with the continued
success of U.S. publishing and database production that thrives without . . .
[such] protection, but nevertheless appears to be a political reality.) Sec-
ond, repealing the directive would reopen the debate on what level of protec-
tion is needed. Third, change may be costly.
Imagine applying these arguments to a drug trial. The patients in the con-
trol group have done better than those given the drug and there is evidence
that the drug might be harmful. But the drug companies like their prots and
want to keep the drug on the market. Though somewhat at odds with the
evidence, this is a political reality. Getting rid of the drug would reopen the
debate on the search for a cure. Change is costlytrue. But what is the pur-
pose of a review if the status quo is always to be preferred?
The nal result? Faced with what Commission staff members tell me was a
tidal wave of lobbying from publishers, the Commission quietly decided to
leave the directive unchanged, despite the evidence. The result itself is not
remarkable. Industry capture of a regulatory apparatus is hardly a surprise.
What is remarkable is that this is one of the rst times any entity engaged in
making intellectual property policy on the international level has even looked
seriously at the empirical evidence of that policys effects.
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To be sure, gures are thrown around in hearings. The software industry
will present studies showing, for example, that it has lost billions of dollars be-
cause of illicit copying. It has indeed lost prots relative to what it could get
with all the benets of cheaper copying and transmission worldwide and with
perfect copyright enforcement as well. (Though the methodology of some of the
studies, which assumes that each copier would have paid full priceis ridicu-
lous.) But this simply begs the question. A new technology is introduced that
increases the size of your market and decreases your costs dramatically, but
also increases illicit copying. Is this cause for state intervention to increase
your level of rights or the funds going toward enforcement of copyright law,
as opposed to any other law enforcement priority? The question for empirical
analysis, both before and after a policy change, should be Is this change nec-
essary in order to maintain incentives for production and distribution? Will
whatever benets it brings outweigh the costs of static and dynamic losses
price increases to consumers and impediments to future innovators? The
content companies might still be able to justify the extensions of their rights.
But they would be doing so in the context of a rational, evidence-based debate
about the real goals of intellectual property, not on the assumption that they
have a natural right to collect all the economic surplus gained by a reduction
in the costs of reproduction and distribution.
DOES PUBLIC INFORMATION
WANT TO BE FREE?
The United States has much to learn from Europe about information policy.
The ineffectively scattered U.S. approach to data privacy, for example, pro-
duces random islands of privacy protection in a sea of potential vulnerability.
Until recently, your video rental records were better protected than your med-
ical records. Europe, by contrast, has tried to establish a holistic framework, a
much more effective approach. But there are places where the lessons should
ow the other way. The rst one, I have suggested, is database protection. The
second is a related but separate issue: the legal treatment of publicly generated
data, the huge, and hugely important, ow of information produced by
government-funded activitiesfrom ordnance survey maps and weather data
to state-produced texts, trafc studies, and scientic information. How is this
ow of information distributed? The norm turns out to be very different in
the United States and in Europe.
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In one part of the world, state-produced data ows are frequently viewed as
revenue sources. They are often copyrighted or protected by database rights.
Many of the departments which produce them attempt to make a prot or at
least to recover their entire operating costs through user fees. It is heresy to
suggest that the taxpayer has already paid for the production of this data and
should not have to do so twice. The other part of the world practices a benign
form of information socialism. By law, any text produced by the central gov-
ernment is free from copyright and passes immediately into the public do-
main. The basic norm is that public data ows should be available at the cost
of reproduction alone.
It is easy to guess which area is which. The United States is surely the prot-
and property-obsessed realm, Europe the place where the state takes pride in
providing data as a public service? No, actually, it is the other way around.
Take weather data. The United States makes complete weather data avail-
able to all at the cost of reproduction. If the superb government Web sites and
data feeds are insufcient, for the cost of a box of blank DVDs you can have
the entire history of weather records across the continental United States.
European countries, by contrast, typically claim government copyright over
weather data and often require the payment of substantial fees. Which
approach is better? I have been studying the issue for fteen years, and if I had
to suggest a single article it would be the magisterial study by Peter Weiss
called Borders in Cyberspace, published by the National Academies of Sci-
ence.
8
Weiss shows that the U.S. approach generates far more social wealth.
True, the information is initially provided for free, but a thriving private
weather industry has sprung up which takes the publicly funded data as its
raw material and then adds value to it. The U.S. weather risk management in-
dustry, for example, is more than ten times bigger than the European one,
employing more people, producing more valuable products, generating more
social wealth. Another study estimates that Europe invests 9.5 billion Euros in
weather data and gets approximately 68 billion back in economic valuein
everything from more efcient farming and construction decisions to better
holiday planninga sevenfold multiplier. The United States, by contrast, in-
vests twice as much19 billionbut gets back a return of 750 billion Euros,
a thirty-nine-fold multiplier.
Other studies suggest similar patterns elsewhere, in areas ranging from
geospatial data to trafc patterns and agriculture. The free information ow
is better at priming the pump of economic activity.
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Some readers may not thrill to this way of looking at things because it
smacks of private corporations getting a free ride on the public purse
social wealth be damned. But the benets of open data policies go further.
Every year the monsoon season kills hundreds and causes massive property
damage in Southeast Asia. One set of monsoon rains alone killed 660 people
in India and left 4.5 million homeless. Researchers seeking to predict the
monsoon sought complete weather records from the United States and Eu-
rope so as to generate a model based on global weather patterns. The U.S.
data was easily and cheaply available at the cost of reproduction. The
researchers could not afford to pay the price asked by the European weather
services, precluding the ensemble analysis they sought to do. Weiss asks
rhetorically, What is the economic and social harm to over 1 billion people
from hampered research? In the wake of the outpouring of sympathy for
tsunami victims in the same region, this example seems somehow even more
tragic. Will the pattern be repeated with seismographic, cartographic, and
satellite data? One hopes not.
The European attitude may be changing. Competition policy has already
been a powerful force in pushing countries to rethink their attitudes to gov-
ernment data. The European Directive on the Reuse of Public Sector In-
formation takes large strides in the right direction, as do studies by the
Organization for Economic Co-operation and Development (OECD) and
several national initiatives.
9
Unfortunately, though, most of these follow the
same pattern. An initially strong draft is watered down and the utterly crucial
question of whether data should be provided at the marginal cost of repro-
duction is fudged or avoided. This is a shame. Again, if we really believed in
evidence-based policy making, the debate would be very different.
BREAKING THE DEAL
What would the debate look like if we took some of the steps I mention here?
Unfortunately there are very few examples of evidence-based policy making,
but the few that do exist are striking.
In 2006, the government-convened Gowers Review of intellectual property
policy in the United Kingdom considered a number of proposals on changes to
copyright law, including a retrospective extension of sound recording copy-
right terms.
10
The copyright term for sound recordings in the United King-
dom is fty years. (It is longer for compositions.) At the end of the fty-year
period, the recording enters the public domain. If the composition is also in
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the public domainthe great orchestral works of Beethoven, Brahms, and
Mozart, for example, or the jazz classics of the early twentieth centurythen
anyone can copy the recording. This means we could make it freely available in
an online repository for music students throughout Britainperhaps prepar-
ing the next generation of performersor republish it in a digitally cleansed
and enhanced edition. If the composition is still under copyright, as with
much popular music, then the composer is still entitled to a licensing fee, but
now any music publisher who pays that fee can reissue the workintroducing
competition and, presumably, bringing down prices of the recording.
The recording industry, along with successful artists such as Sir Cliff
Richard and Ian Anderson of Jethro Tull, wished to extend the fty-year term
to ninety-ve years, or perhaps even longerthe life of the performer, plus
seventy years. This proposal was not just for new recordings, but for the ones
that have already been made.
Think of the copyright system as offering a deal to artists and record com-
panies. We will enlist the force of the state to give you fty years of monop-
oly over your recordings. During that time, you will have the exclusive right
to distribute and reproduce your recording. After that time, it is available to
all, just as you beneted from the availability of public domain works from
your predecessors. Will you make records under these terms?
Obviously, fty years of legalized exclusivity was enough of an incentive to
get them to make the music in the rst place. We have the unimpeachable
evidence that they actually did. Now they want to change the terms of the deal
retrospectively. They say this will harmonize the law internationally, give
recordings the same treatment as compositions, help struggling musicians, and
give the recording industry some extra money that it might spend on develop-
ing new talent. (Or on Porsches, shareholder dividends, and plastic ducks. If
you give me another forty-ve years of monopoly rent, I can spend it as I wish.)
Change the context and think about how you would react to this if the deal
was presented to you personally. You hired an artist to paint a portrait. You
offered $500. He agreed. You had a deal. He painted the painting. You liked
it. You gave him the money. A few years later he returned. You owe me
another $450, he said.
You both looked at the contract. But you agreed to paint it for $500 and
I paid you that amount. He admitted this was true, but pointed out that
painters in other countries sometimes received higher amounts, as did sculptors
in our own country. In fact, he told you, all painters in our country planned
to demand another $450 for each picture they had already painted as well as
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for future pictures. This would harmonize our prices with other countries,
put painting on the same footing as sculpture, and enable painters to hire
more apprentices. His other argument was that painters often lost money.
Only changing the terms of their deals long after they were struck could keep
them in business. Paying the money was your duty. If you did not pay, it
meant that you did not respect art and private property.
You would nd these arguments absurd. Yet they are the same ones the
record industry used, relying heavily on the confusions against which this
book has warned. Is the record companies idea as outrageous as the demands
of my imaginary painter? It is actually worse.
The majority of sound recordings made more than forty years ago are com-
mercially unavailable. After fty years, only a tiny percentage are still being
sold. It is extremely hard to nd the copyright holders of the remainder. They
might have died, gone out of business, or simply stopped caring. Even if the
composer can be found, or paid through a collection society, without the con-
sent of the holder of the copyright over the musical recording, the work must
stay in the library. These are orphan worksa category that probably com-
prises the majority of twentieth-century cultural artifacts.
Yet as I pointed out earlier, without the copyright holders permission, it is
illegal to copy or redistribute or perform these works, even if it is done on a
nonprot basis. The goal of copyright is to encourage the production of, and
public access to, cultural works. It has done its job in encouraging produc-
tion. Now it operates as a fence to discourage access. As the years go by, we
continue to lock up 100 percent of our recorded culture from a particular year
in order to benet an ever-dwindling percentagethe lottery winnersin a
grotesquely inefcient cultural policy.
Finally, fty years after they were made, sound recordings enter the public
domain in the United Kingdom (though as I pointed out earlier, licensing fees
would still be due to the composer if the work itself was still under copyright).
Now anyoneindividual, company, specialist in public domain material
could offer the work to the public. But not if the record companies can per-
suade the government otherwise. Like my imaginary painter, they want to
change the terms of the deal retrospectively. But at least the painters proposal
would not make the vast majority of paintings unavailable just to benet a
tiny minority of current artists.
The recording industrys proposal for retrospective extension was effectively
a tax on the British music-buying public to benet the copyright holders of a
tiny proportion of sound recordings. The public loses three times. It loses rst
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when it is forced to continue to pay monopoly prices for older, commercially
available music, rather than getting the benet of the bargain British legisla-
tors originally offered: fty years of exclusivity, then the public domain. The
public loses a second time when, as a side effect, it is denied access to com-
mercially unavailable music; no library or niche publisher can make the for-
gotten recordings available again. Finally, the public loses a third time because
allowing retrospective extensions will distort the political process in the future,
leading to an almost inevitable legislative capture by the tiny minority who
nd that their work still has commercial value at the end of the copyright
term they were originally granted. As Larry Lessig has pointed out repeatedly,
the time to have the debate about the length of the copyright term is before
we know whose works will survive commercially.
The whole idea is very silly. But if this is the silly idea we wish to pursue,
then simply increase the income tax proportionately and distribute the bene-
ts to those record companies and musicians whose music is still commer-
cially available after fty years. Require them to put the money into developing
new artistssomething the current proposal does not do. Let all the other
recordings pass into the public domain.
Of course, no government would consider such an idea for a moment. Tax
the public to give a monopoly windfall to those who already hit the jackpot,
because they claim their industry cannot survive without retrospectively
changing the terms of its deals? It is indeed laughable. Yet it is a far better pro-
posal than the one that was presented to the Gowers Review.
What happened next was instructive. The Review commissioned an eco-
nomic study of the effects of copyright term extensionboth prospective and
retrospectiveon recorded music from the University of Cambridges Centre
for Intellectual Property and Information Law. The resulting document was
a model of its kind.
11
With painstaking care and a real (if sometimes fruitless) attempt to make eco-
nomic arguments accessible to ordinary human beings, the study laid out the
costs and benets of extending the copyright term over sound recordings. It
pointed out that the time to measure the value of a prospective term extension
is at the moment the copyright is granted. Only then does it produce its incen-
tive effects. The question one must ask is how much value today does it give an
artist or record company to have their copyright extended by a year at the end of
the existing period of protection. Then one must look to see whether the bene-
ts of the added incentive outweigh the social costs it imposes. To put it another
way, if the state were selling today the rights to have protection from year fty to
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year ninety-ve, how much would a rational copyright holder pay, particularly
knowing that there is only a small likelihood the work will even be commer-
cially available to take advantage of the extension? Would that amount be
greater than the losses imposed on society by extending the right?
Obviously, the value of the extension is affected by our discount rate
the annual amount by which we must discount a pound sterling in royalties
I will not receive for fty-one years in order to nd its value now. Unsurpris-
ingly, one nds that the value of that pound in the future is tiny at the mo-
ment when it matterstodayin the calculation of an artist or distributor
making the decision whether to create. Conservative estimates yield a present
value between 3 percent and 9 percent of the eventual amount. By that analy-
sis, a pound in fty years is worth between three and nine pence to you today,
while other estimates have the value falling below one penny. This seems un-
likely to spur much creativity at the margin. Or to put it in the more elegant
language of Macaulay, quoted in Chapter 2:
I will take an example. Dr. Johnson died fty-six years ago. If the law were what
my honourable and learned friend wishes to make it, somebody would now have
the monopoly of Dr. Johnsons works. Who that somebody would be it is impos-
sible to say; but we may venture to guess. I guess, then, that it would have been
some bookseller, who was the assign of another bookseller, who was the grandson
of a third bookseller, who had bought the copyright from Black Frank, the Doc-
tors servant and residuary legatee, in 1785 or 1786. Now, would the knowledge
that this copyright would exist in 1841 have been a source of gratication to John-
son? Would it have stimulated his exertions? Would it have once drawn him out of
his bed before noon? Would it have once cheered him under a t of the spleen?
Would it have induced him to give us one more allegory, one more life of a poet,
one more imitation of Juvenal? I rmly believe not. I rmly believe that a hundred
years ago, when he was writing our debates for the Gentlemans Magazine, he
would very much rather have had twopence to buy a plate of shin of beef at a
cooks shop underground.
12
The art form is different, but the thought of a 1960s Cliff Richard or Ian An-
derson being cheered under a t of the spleen by the prospect of a copyright
extension fty years hence is truly a lovely one.
Considering all these factors, as well as the effects on investment in British
versus American music and on the balance of trade, the Cambridge study found
that the extension would cost consumers between 240 and 480 million pounds,
far more than the benets to performers and recording studios. (In practice, the
report suggested, without changes in the law, most of the benets would not
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have gone to the original recording artist in any case.) It found prospective ex-
tension led to a clear social welfare loss. What of retrospective extension?
The report considered, and found wanting, arguments that retrospective
extension is necessary to encourage media migrationthe digitization of
existing works, for example. In fact, most studies have found precisely the
reversethat public domain works are more available and more frequently
adapted into different media. (Look on Amazon.com for a classic work that is
out of copyrightMoby-Dick, for exampleand see how many adaptations
and formats are available.) It also rejected the argument that harmonization
alone was enough to justify extensionretrospective or prospectivepointing
out the considerable actual variation in both term and scope of rights afforded
to performers in different countries. Finally, it warned of the hidden ratch-
eting effect of harmonisation which results from the fact that harmonisation
is almost invariably upwards. Its conclusion was simple:
[R]etrospective term extensions reduce social welfare. Thus, in this case, it would
seem that basic theory alone is sufcient to provide strong, and unambiguous,
guidance for policy-makers. . . . We therefore see no reason to quarrel with the
consensus of the profession on this issue which as summed up by Akerlof et al. . . .
[states] categorically that . . . [retrospective] extension provides essentially no in-
centive to create new works. Once a work is created, additional compensation to
the producer is simply a windfall.
13
The Gowers Review agreed. Its fourth recommendation read simply, Policy
makers should adopt the principle that the term and scope of protection for
IP rights should not be altered retrospectively. Perhaps more important,
though, was the simple paragraph at the front of the document captioned
The Approach of the Review. It begins thus: The Review takes an
evidence-based approach to its policy analysis and has supplemented internal
analysis by commissioning external experts to examine the economic impact
of changes. . . .
Why specify that one was taking an evidence-based approach? At rst, the
comment seems unnecessary. What other approach would one take? Anecdo-
tal? Astrological? But there is a framework in which empirical evidence of the
effects of policy simply seems irrelevantone based on natural right. When
the Review was given to the House of Commons Select Committee on Cul-
ture, Media and Sport, that frame of mind was much in evidence:
The Gowers Review undertook an extensive analysis of the argument for extending
the term. On economic grounds, the Review concluded that there was little
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evidence that extension would benet performers, increase the number of works cre-
ated or made available, or provide incentives for creativity; and it noted a potentially
negative effect on the balance of trade. . . . Gowerss analysis was thorough and in
economic terms may be correct. It gives the impression, however, of having been
conducted entirely on economic grounds. We strongly believe that copyright repre-
sents a moral right of a creator to choose to retain ownership and control of their
own intellectual property. We have not heard a convincing reason why a composer
and his or her heirs should benet from a term of copyright which extends for life-
time and beyond, but a performer should not. . . . Given the strength and impor-
tance of the creative industries in the U.K., it seems extraordinary that the
protection of intellectual property rights should be weaker here than in many other
countries whose creative industries are less successful.
14
A couple of things are worth noting here. The rst is that the Committee is
quite prepared to believe that the effects of term extension would not benet
performers or provide incentives for creativity, and even to believe that it
would hurt the balance of trade. The second is the curious argument in the
last sentence. Other countries have stronger systems of rights and are less suc-
cessful. We should change our regime to be more like them! Obviously the
idea that a countrys creative industries might be less successful because their
systems of rights were stronger does not occur to the Committee for a mo-
ment. Though it proclaims itself to be unaffected by economic thought, it is
in fact deeply inuenced by the more rights equals more innovation ideol-
ogy of maximalism that I have described in these pages.
Nestling between these two apparently contradictory ideas is a serious ar-
gument that needs to be confronted. Should we ignore evidenceeven con-
clusive evidenceof negative economic effects, harm to consumers, and
consequences for the availability of culture because we are dealing with an is-
sue of moral right, almost natural right? Must we extend the rights of the
artists who recorded those songs (or rather the record companies who imme-
diately acquired their copyrights) because they are simply theirs as a matter of
natural justice? Do performers have a natural right to recorded songs either
because they have labored on them, mixing their sweat with each track, or be-
cause something of their personality is forever stamped into the song? Must
we grant an additional forty-ve years of commercial exclusivity, not because
of economic incentive, but because of natural right?
Most of us feel the pull of this argument. I certainly do. But as I pointed
out in Chapter 2, there are considerable problems with such an idea. First, it
runs against the premises of actual copyright systems. In the United States, for
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example, the Constitution resolutely presents the opposite picture. Exclusive
rights are to encourage progress in science and the useful arts. The Supreme
Court has elaborated on this point many times, rejecting both labor-based
sweat of the brow theories of copyright and more expansive visions based on
a natural right to the products of ones geniuswhether inventions or novels.
Britain, too, has a history of looking to copyright as a utilitarian scheme
though with more reference to, and legal protection of, particular moral
rights than one nds in the United States. But even in the most expansive
moral rights legal systems, even in the early days of debate about the rights
of authors after the French Revolution, it is accepted that there are temporal
limits on these rights. If this is true of authors, it is even more true of per-
formers, who are not granted the full suite of authors rights in moral rights
jurisdictions, being exiled to a form of protection called neighboring rights.
In all of these schemes, there are time limits on the length of the rights (and
frequently different ones for different creatorsauthors, inventors, perform-
ers, and so on). Once one has accepted that point, the question of how long
they should be is, surely, a matter for empirical and utilitarian analysis. One
cannot credibly say that natural rights or the deep deontological structure
of the universe gives me a right to twenty-eight or fty-six or seventy years of
exclusivity. The argument must turn instead to a question of consequences.
Which limit is better? Once one asks that question, the Gowers Reviews eco-
nomic assessment is overwhelming, as the Select Committee itself recognized.
In the end, the government agreednoting that a European Union study had
found precisely the same thing. The sound recording right should not be ex-
tended, still less extended retrospectively. The evidence-free zone had been
penetrated. But not for long. As this book went to press, the European Com-
mission announced its support for an even longer Europe-wide extension of
the sound recording right. The contrary arguments and empirical evidence
were ignored, minimized, explained away. How can this pattern be broken?
In the next and nal chapter, I try to answer that question. I offer a partial
explanation for the cognitive and organizational blindnesses that have brought
us to this point. I argue that we have much to learn from the history, theory,
and organizational practices of the environmental movement. The environ-
mental movement taught us to see the environment for the rst time, to rec-
ognize its importance, and to change the way we thought about ecology,
property, and economics in consequence. What we need is an environmental-
ism of mind, of culture, of information. In the words of my colleague David
Lange, we need to recognize the public domain. And to save it.
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10
An Environmentalism
for Information
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Over the last fteen years, a group of scholars have nally persuaded
economists to believe something noneconomists nd obvious: be-
havioral economics shows that people do not act as economic the-
ory predicts. But hold your cheers. This is not a vindication of folk
wisdom over the pointy-heads. The deviations from rational behav-
ior are not the wonderful cornucopia of human motivations you
might imagine. There are patterns. For example, we are systematically
likely to overestimate chances of loss and underestimate chances of
gain, to rely on simplifying heuristics to frame problems even when
those heuristics are contradicted by the facts.
Some of the patterns are endearing; the supposedly irrational
concerns for distributive equality that persist in all but the econom-
ically trained and the extreme right, for example. But most of them
simply involve the mapping of cognitive bias. We can take advantage
of those biases, as those who sell us ludicrously expensive and irra-
tional warranties on consumer goods do. Or we can correct for them,
like a pilot who is trained to rely on his instruments rather than his
faulty perceptions when ying in heavy cloud.
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This book has introduced you to the wonders and terrors of intellectual
property lawthe range wars of the Internet age. There have been discussions
of synthetic biology and musical sampling, digital locks and the hackers who
break them, Jefferson and Macaulay, and the ght over video recorders. Now
it is time to sum up.
I would argue that the chapters in this book present evidence of another
kind of cognitive bias, one that the behavioral economists have not yet iden-
tied. Call it the openness aversion. Cultural agoraphobia. We are systemati-
cally likely to undervalue the importance, viability, and productive power of
open systems, open networks, and nonproprietary production.
CULTURAL AGORAPHOBIA?
Test yourself on the following questions. In each case, it is 1991 and I have re-
moved from you all knowledge of the years since then. (For some, this might
be a relief.)
The rst question is a thought experiment I introduced in Chapter 4. You
have to design an international computer network. One group of scientists de-
scribes a system that is fundamentally open: open protocols and open systems
so that anyone could connect to the system and offer information or products
to the world. Another groupscholars, businesspeople, bureaucratspoints
out the problems. Anyone could connect to the system! They could do any-
thing! The system itself would not limit them to a few approved actions or ap-
proved connections. There would be porn, and piracy, and viruses, and spam.
Terrorists could put up videos glorifying themselves. Your neighbors site could
compete with the New York Times or the U.S. government in documenting the
war in Iraq. Better to have a well-managed system in which ofcial approval is
required to put up a site, where only a few selected actions are permitted by the
network protocols, where most of us are merely recipients of information,
where spam, viruses, and piracy (and innovation and participatory culture and
anonymous speech) are impossible. Which network design would you have
picked? Remember, you have no experience of blogs, or mashups, or Google;
no experience of the Web. Just you and your cognitive lters.
Imagine a form of software which anyone could copy and change, created
under a license which required subsequent programmers to offer their soft-
ware on the same terms. Imagine legions of programmers worldwide con-
tributing their creations back into a commons. Is this anarchic-sounding
method of production economically viable? Could it successfully compete
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with the hierarchically organized corporations producing proprietary, closed
code, controlled by both law and technology? Be truthful.
Finally, set yourself the task of producing the greatest reference work the
world has ever seen. You are told that it must cover everything from the best
Thai food in Durham to the annual rice production of Thailand, from the
best places to see blue whales to the history of the Blue Dog Coalition. Would
you create a massive organization of paid experts, each assigned a topic, with
hierarchical layers of editors above them, producing a set of encyclopedic
tomes that are rigorously controlled by copyright and trademark? Or would
you wait for hobbyists, governments, scientists, and volunteer encyclopedists
to produce, and search engines to organize and rank, a cornucopia of infor-
mation? I know which way I would have bet in 1991. But I also know that the
last time I consulted an encyclopedia was in 1998. You?
It is not that openness is always right. It is not. Often we need strong intel-
lectual property rights, privacy controls, and networks that demand authenti-
cation. Rather, it is that we need a balance between open and closed, owned
and free, and we are systematically likely to get the balance wrong. (How did
you do on the test?) Partly this is because we still dont understand the kind of
property that lives on networks; most of our experience is with tangible prop-
erty. Sandwiches that one hundred people cannot share. Fields that can be
overgrazed if outsiders cannot be excluded. For that kind of property, control
makes more sense. Like astronauts brought up in gravity, our reexes are
poorly suited for free fall. Jeffersons words were true even of grain elevators
and hopper-boys. But in our world, the proportion of intangible to tangible
property is much, much higher. The tendency to conate intellectual and real
property is even more dangerous in a networked world. We need his words
more than he did.
Each of the questions I asked is related to the World Wide Web. Not the
Internet, the collective name for the whole phenomenon, including the un-
derlying methods of sending and receiving packets. Some version of the un-
derlying network has been around for much longer, in one form or another.
But it only attracted popular attention, only revolutionized the world, when
on top of it was built the World Wide Webthe network of protocols and
pages and hyperlinks that is so much a part of our lives and which arose only
from Tim Berners-Lees work at CERN in 1991.
My daughter will graduate from college in the year 2011. (At least, we both
hope so.) She is older than the Web. It will not even have had its twentieth
birthday on her graduation day. By Christmas of 2012, it will be able to drink
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legally in the United States. I wrote those sentences, but I nd it hard to be-
lieve them myself. A life without the Web is easy to remember and yet hard to
recapture fully. It seems like such a natural part of our world, too xed to have
been such a recent arrival, as if someone suggested that all the roads and
buildings around you had arrived in the last fteen years.
Some of you may nd these words inexplicable because you live in a happy,
Thoreau-like bliss, free of any contact with computer networks. If so, I take
my hat off to you. The world of open sky and virtuous sweat, of books and
sport and laughter, is no less dear to me than to you. Having an avatar in a vir-
tual world holds the same interest as elective dental surgery. I care about the
Web not because I want to live my life there, but because of what it has al-
lowed us to achieve, what it represents for the potential of open science and
culture. That, I think, is something that Thoreau (and even Emerson for that
matter) might have cared about deeply. Yet, as I suggested earlier in this book,
I seriously doubt that we would create the Web todayat least if policy mak-
ers and market incumbents understood what the technology might become
early enough to stop it.
I am not postulating some sinister Breakages, Limited that sties techno-
logical innovation. I am merely pointing out the imbalance between our intu-
itive perceptions of the virtues and dangers of open and closed systems, an
imbalance I share, quite frankly.
In place of what we have today, I think we would try, indeed we are trying,
to reinvent a tamer, more controlled Web and to change the nature of the un-
derlying network on which it operates. (This is a fear I share with those who
have written about it more eloquently than I, particularly Larry Lessig and
Yochai Benkler.) We would restrict openness of access, decrease anonymity,
and limit the number of actions that a network participant could perform.
The benets would be undeniable. It would cut down on spam, viruses, and
illicit peer-to-peer le sharing. At the same time, it would undercut the icon-
oclastic technological, cultural, and political potential that the Web offers, the
ability of a new technology, a new service to build on open networks and open
protocols, without needing approval from regulators or entrenched market
players, or even the owners of the Web pages to which you link.
Imagine, by contrast, an Internet and a World Wide Web that looked like
America Online, circa 1996, or Compuserve, or the French state network
Minitel. True, your exposure to penis-enhancement techniques, misspelled
stock tips, and the penniless sons of Nigerian oil ministers would be reduced.
That sounds pretty attractive. But the idea that the AOL search engine would
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be replaced by Yahoo and then Google, let alone Google Maps? That new
forms of instant messaging would displace Compuserves e-mail? That the
Chinese dissident would have access to anonymized Internet services, that
you might make phone calls worldwide for free from your computer, or that a
blog like BoingBoing would end up having more page views than many ma-
jor newspapers? Forget it. Goodbye to the radical idea that anyone can link to
any page on the network without permission. A revised network could have
the opposite rule and even impose it by default.
A tamer network could keep much tighter control over content, particu-
larly copyrighted content. You might still get the video of the gentlemen do-
ing strange things with Mentos and soda bottles, though not its viral method
of distribution. But forget about George Bush Doesnt Care About Black
People and all your favorite mashups. Its controlled network of links and its
limited access would never unleash the collective fact-gathering genius the
Web has shown. For a fee, you would have Microsoft Encarta and the Ency-
clopedia Britannica online. What about the right-click universe of knowl-
edge about the world gathered by strangers, shared on comparatively open
sites worldwide, and ordered by search engines? What about Wikipedia? I
think not.
The counterfactual I offer is not merely a counterfactual. Yes, we got the
Web. It spread too fast to think of taming it into the more mature, sedate
National Information Infrastructure that the Clinton administration imag-
ined. But as Larry Lessig pointed out years ago, the nature of a network can
always be changed. The war over the control and design of the network, and
the networked computer, is never-ending. As I write these words, the battles
are over trusted computing and Net neutrality. Trusted computing is a
feature built into the operating system which makes it impossible to run pro-
cesses that have not been approved by some outside body and digitally identi-
ed. It would indeed help to safeguard your computer from viruses and other
threats and make it harder to copy material the content owners did not want
you to copy (perhaps even if you had a right to). In the process it would help
to lock in the power of those who had a dominant position in operating sys-
tems and popular programs. (Microsoft is a big supporter.) It would make
open source software, which allows users to modify programs, inherently sus-
pect. It would, in fact, as Jonathan Zittrain points out, change the nature of
the general-purpose computer, which you can program to do anything, back
toward the terminal which tells you what functions are allowed.
1
Think of a
DVD player.
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The attack on Net neutrality, by contrast, is an attempt by the companies
who own the networks to be allowed to discriminate between favored and
disfavored content, giving the former preferential access. (One wit analo-
gized it to letting the phone company say, we will delay your call to Pizza
Hut for sixty seconds, but if you want to be put through to our featured
pizza provider immediately, hit nine now!) Taken together, these proposals
would put the control of the computer back in the hands of the owners of
the content and the operating system, and control of the network users
choices in the hands of the person who sells them their bandwidth. At the
same time, our intellectual property agenda is lled with proposals to create
new intellectual property rights or extend old ones. That is the openness
aversion in action.
Now, perhaps to you, the closed alternatives still sound better. Perhaps you
do not care as much about the kind of technological dynamism, or anony-
mous speech, or cultural ferment that thrills the digerati. Perhaps you care
more about the risks posed by the underlying freedom. That is a perfectly rea-
sonable point of view. After all, openness does present real dangers; the same
freedom given to the innovator, the artist, and the dissident is given to the
predator and the criminal. At each moment in history when we have opened
a communications network, or the franchise, or literacy, reasonable people
have worried about the consequences that might ensue. Would expanded lit-
eracy lead to a general coarsening of the literary imagination? (Sometimes,
perhaps. But it would and did lead to much more besides, to literature and
culture of which we could not have dreamed.) Would an expanded franchise
put the control of the state into the hands of the uneducated? (Yes, unless we
had free national educational systems. Now we must educate our masters
was the slogan of the educational reformers after the enlargement of the fran-
chise in Britain in the nineteenth century. Openness sometimes begets open-
ness.) Would translating the Bible from Latin into the vernacular open the
door to unorthodox and heretical interpretations, to a congregation straying
because they did not need to depend on a priestly intermediary with privi-
leged access to the text? (Oh, yes indeed.) Would TV and radio play into the
hands of demagogues? (Yes, and help expose their misdeeds.)
Openness is not always right. Far from it. But our prior experience seems to
be that we are systematically better at seeing its dangers than its benets. This
book has been an attempt, in the sphere of intellectual property, to help us
counteract that bias. Like the pilot in the cloud looking at his instruments, we
might learn that we are upside down. But what do we do about it?
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LEARNING FROM ENVIRONMENTALISM
I have argued that our policies are distorted not merely by industry capture or
the power of incumbent rms, but by a series of cultural and economic biases
or presuppositions: the equation of intellectual property to physical property;
the assumption that whenever value is created, an intellectual property right
should follow; the romantic idea of creativity that needs no raw material from
which to build; the habit of considering the threats, but not the benets, of
new technologies; the notion that more rights will automatically bring more
innovation; the failure to realize that the public domain is a vital contributor
to innovation and culture; and a tendency to see the dangers of openness, but
not its potential benets.
2
One of the most stunning pieces of evidence to our aversion to openness is
that, for the last fty years, whenever there has been a change in the law, it has
almost always been to expand intellectual property rights. (Remember, this
implies that every signicant change in technology, society, or economy re-
quired more rights, never less, nor even the same amount.) We have done all
this almost entirely in the absence of empirical evidence, and without empiri-
cal reconsideration to see if our policies were working. As I pointed out in the
last chapter, intellectual property policy is an evidence-free zone. It runs on
faith alone and its faith consists of the cluster of ideas I have outlined in this
book. Whether we call this cluster of ideas maximalism, cultural agoraphobia,
or the openness aversion, it exercises a profound inuence on our intellectual
property and communications policy.
These ideas are not free-oating. They exist within, are inuenced by, and
in turn inuence, a political economy. The political economy matters and it
will shape any viable response. Even if the costs of getting the policies wrong
are huge and unnecessarythink of the costs of the copyright extensions that
lock up most of twentieth-century culture in order to protect the tiny fraction
of it that is still commercially availablethey are spread out over the entire
population, while the benets accrue to a small group of commercial entities
that deeply and sincerely believe in the maximalist creed. This pattern of dif-
fuse but large losses and concentrated gains is, as Mancur Olson taught us, a
recipe for political malfunction.
3
Yet the problem is even deeper than that
in four ways.
First, though intellectual property rules will profoundly shape science, cul-
ture, and the market in the information age, they just seem obscure, wonkish,
hard to get excited about. Certainly, people can get upset about individual
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examplesoverbroad patents on human genes, copyright lawsuits against
whistleblowers who leak e-mails showing corporate misdeeds that threaten
the integrity of electronic voting, rules that paralyze documentary lmmakers,
or require payment for sampling three notes from a prior song, extensions of
rights that allow patents on auctions or business methods, make genres such
as jazz seem legally problematic, create new rights over facts, or snarl up foun-
dational technologies. But they see each of these as an isolated malfunction,
not part of a larger social problem or set of attitudes.
Second, what holds true for issues, also holds true for communities. What
links the person writing open source software, and trying to negotiate a sea of
software patents in the process, to the lm archivist trying to stir up interest
in all the wonderful orphan lmsstill under copyright but with no copy-
right owner we can ndbefore they molder away into nitrate dust? When a
university collaborates with Google to digitize books in their collection for the
purposes of search and retrieval, even if only a tiny portion of the text will be
visible for any work still under copyright, does it sense any common interest
with the synthetic biologist trying to create the BioBricks Foundation, to keep
open the foundational elements of a new scientic eld? Both may be sued for
their effortsone connection at least.
When a developing nation tries to make use of the explicit exibilities
built into international trade agreements so as to make available a life-saving
drug to its population through a process of compulsory licensing and com-
pensation, it will nd itself pilloried as a lawbreakerthough it is notor
punished through bilateral agreements. Will that process form any common
interest with the high-technology industries in the United States who chafe at
the way that current intellectual property rules enshrine older technologies
and business methods and give them the protection of law? There are some
links between those two situations. Will the parties see those links, or will the
developing worlds negotiators think that the current intellectual property
rules express some monolithic Western set of interests? Will the high-tech
companies think this is just an issue of dumb lawyers failing to understand
technology? Each gap in understanding of common interest is a strike against
an effective response.
Third, an effective political response would actually be easier if our current
rules came merely from the relentless pursuit of corporate self-interest. (Here
I part company with those who believe that self-interest is simply there
not shaped by socially constructed ideas, attitudes, ideologies, or biases.)
In fact, the openness aversion sometimes obscures self-interest as well as the
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public interest. Think of the relentless insistence of the movie companies on
making video recorders illegal. Nor does the framework of maximalism help if
our goal is to have all the interested economic actors in the room when policy
is made. For example, by framing issues of communications policy or Internet
regulation as questions of intellectual property, we automatically privilege one
set of interested partiescontent ownersover others who also have a large
economic stake in the matter.
Fourth, and nally, the biggest problem is that even if one could over-
come the problems of political interest, or ideological closed-mindedness, the
answers to many of these questions require balance, thought, and empirical
evidenceall qualities markedly missing in the debate. If the answer were
that intellectual property rights are bad, then forming good policy would be
easy. But that is as silly and one-sided an idea as the maximalist one I have
been criticizing here. Here are three examples:
1. Drug patents do help produce drugs. Jettisoning them is a bad idea
though experimenting with additional and alternative methods of encour-
aging medical innovation is a very good one.
2. I believe copyrights over literary works should be shorter, and that one
should have to renew them after twenty-eight yearssomething that
about 85 percent of authors and publishers will not do, if prior history is
anything to go by. I think that would give ample incentives to write and
distribute books, and give us a richer, more accessible culture and educa-
tional system to boot, a Library of Congress where you truly can click to
get the book as my son asked me to do years ago now. But that does not
mean that I wish to abolish copyright. On the contrary, I think it is an
excellent system.
3. All the empirical evidence shows that protecting compilations of facts, as
the European Database Directive does, has been a profound failure as a
policy, imposing costs on consumers without encouraging new database
production. But if the evidence said the opposite, I would support a new
database right.
We need a political debate about intellectual property that recognizes these
trade-offs; that does not impose simplistic, one-sided solutions; that looks to
evidence. We need to understand the delicate and subtle balance between
property and the opposite of property, the role of rights, but also of the pub-
lic domain and the commons. Building a theory, let alone a movement,
around such an issue is hard. Doing so when we lack some of the basic
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theoretical tools and vocabularies is daunting. We do not even have a robust
conception of the public domain. If they think of it as a legal issue at all, peo-
ple simply think of it as whatever is left over after an endless series of rights
have been carved out. Can one build a politics to protect a residue?
So we have at least four problems: an issue that is perceived as obscure, af-
fecting scattered groups with little knowledge of each others interest, domi-
nated by an ideology that is genuinely believed by its adherents, in the place of
which we have to make careful, balanced, empirically grounded suggestions.
Assume for a moment the need for a politics of intellectual property that seeks
a solution to these four problems. What might such a politics look like?
I have argued that in a number of respects, the politics of intellectual prop-
erty and the public domain is at the stage that the American environmental
movement was at in the 1950s. In 1950, there were people who cared strongly
about issues we would now identify as environmentalsupporters of the
park system and birdwatchers, but also hunters and those who disdained
chemical pesticides in growing their foods. In the world of intellectual prop-
erty, we have start-up software engineers, libraries, appropriationist artists,
parodists, biographers, and biotech researchers. In the 50s and 60s, we had
urries of outrage over particular crisesburning rivers, oil spills, dreadful
smog. In the world of intellectual property, we have the kind of stories I have
tried to tell here. Lacking, however, is a general framework, a perception of
common interest in apparently disparate situations.
Crudely speaking, the environmental movement was deeply inuenced by
two basic analytical frameworks. The rst was the idea of ecology: the fragile,
complex, and unpredictable interconnections between living systems. The
second was the idea of welfare economicsthe ways in which markets can fail
to make activities internalize their full costs.
4
The combination of the two
ideas yielded a powerful and disturbing conclusion. Markets would routinely
fail to make activities internalize their own costs, particularly their own envi-
ronmental costs. This failure would, routinely, disrupt or destroy fragile eco-
logical systems, with unpredictable, ugly, dangerous, and possibly irreparable
consequences. These two types of analysis pointed to a general interest in en-
vironmental protection and thus helped to build a large constituency which
supported governmental efforts to that end. The duck hunters preservation of
wetlands as a species habitat turns out to have wider functions in the preven-
tion of erosion and the maintenance of water quality. The decision to burn
coal rather than natural gas for power generation may have impacts on every-
thing from forests to sheries. The attempt to reduce greenhouse gases and
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mitigate the damage from global warming cuts across every aspect of the
economy.
Of course, it would be silly to think that environmental policy was fueled
only by ideas rather than more immediate desires. As William Ruckelshaus
put it, With air pollution there was, for example, a desire of the people living
in Denver to see the mountains again. Similarly, the people living in Los An-
geles had a desire to see one another. Funnily enough, as with intellectual
property, changes in communications technology also played a role. In our
living rooms in the middle sixties, black and white television went out and
color television came in. We have only begun to understand some of the im-
pacts of television on our lives, but certainly for the environmental movement
it was a bonanza. A yellow outfall owing into a blue river does not have any-
where near the impact on black and white television that it has on color tele-
vision; neither does brown smog against a blue sky.
5
More importantly
perhaps, the technologically fueled deluge of information, whether from
weather satellites or computer models running on supercomputers, provided
some of the evidence thateventuallystarted to build a consensus around
the seriousness of global warming.
Despite the importance of these other factors, the ideas I mentioned
ecology and welfare economicswere extremely important for the environ-
mental movement. They helped to provide its agenda, its rhetoric, and the
perception of common interest underneath its coalition politics. Even more in-
terestingly, for my purposes, those ideaswhich began as inaccessible scientic
or economic concepts, far from popular discoursewere brought into the
mainstream of American politics. This did not happen easily or automatically.
Popularizing complicated ideas is hard work. There were popular books, televi-
sion discussions, documentaries on Love Canal or the California kelp beds,
op-ed pieces in newspapers, and ponticating experts on TV. Environmental
groups both shocking and staid played their part, through the dramatic theater
of a Greenpeace protest or the tweedy respectability of the Audubon Society.
Where once the idea of the Environment (as opposed to my lake, say) was
seen as a mere abstraction, something that couldnt stand against the concrete
benets brought by a particular piece of development, it came to be an ab-
straction with both the force of law and of popular interest behind it.
To me, this suggests a strategy for the future of the politics of intellectual
property, a way to save our eroding public domain. In both areas, we seem to
have the same recipe for failure in the structure of the decision-making pro-
cess. Democratic decisions are made badly when they are primarily made by
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and for the benet of a few stakeholders, whether industrialists or content
providers. This effect is only intensied when the transaction costs of identi-
fying and resisting the change are high. Think of the costs and benets of acid
rain-producing power generation orless serious, but surely similar in
formthe costs and benets of retrospectively increasing copyright term lim-
its on works for which the copyright had already expired, pulling them back
out of the public domain. There are obvious benets to the heirs and assigns
of authors whose copyright has expired in having Congress put the fence back
up around this portion of the intellectual commons. There are clearly some
costsfor example, to education and public debatein not having multiple,
competing low-cost editions of these works. But these costs are individually
small and have few obvious stakeholders to represent them.
Yet, as I have tried to argue here, beyond the failures in the decision-
making process, lie failures in the way we think about the issues. The envi-
ronmental movement gained much of its persuasive power by pointing out
that for structural reasons we were likely to make bad environmental deci-
sions: a legal system based on a particular notion of what private property
entailed and an engineering or scientic system that treated the world as a
simple, linearly related set of causes and effects. In both of these conceptual
systems, the environment actually disappeared; there was no place for it in the
analysis. Small surprise, then, that we did not preserve it very well. I have ar-
gued that the same is true about the public domain. The confusions against
which the Jefferson Warning cautions, the source-blindness of a model of
property rights centered on an original author, and the political blindness to
the importance of the public domain as a whole (not my lake, but the En-
vironment), all come together to make the public domain disappear, rst in
concept and then, increasingly, as a reality. To end this process we need a cul-
tural environmentalism, an environmentalism of the mind, and over the last
ten years we have actually begun to build one.
Cultural environmentalism is an idea, an intellectual and practical move-
ment, that is intended to be a solution to a set of political and theoretical
problemsan imbalance in the way we make intellectual property policy, a
legal regime that has adapted poorly to the transformation that technology
has produced in the scope of law, and, perhaps most importantly, a set of
mental models, economic nostrums, and property theories that each have a
public domain-shaped hole at their center.
The comparison I drew between the history of environmentalism and the
state of intellectual property policy had a number of facets. The environmental
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movement had invented the concept of the environment and used it to tie
together a set of phenomena that would otherwise seem very separate. In do-
ing so, it changed perceptions of self-interest and helped to form coalitions
where none had existed beforejust as earth science built upon research into
the fragile interconnections of ecology and on the Pigouvian analysis of eco-
nomic externalities. I argue that we need to make visible the invisible contri-
butions of the public domain, the ecosystem services performed by the
underappreciated but nevertheless vital reservoir of freedom in culture and
science.
6
And, just as with environmentalism, we need not only a semantic
reorganization, or a set of conceptual and analytic tools, but a movement of
people devoted to bringing a goal to the attention of their fellow citizens.
I have tried hard to show that there is something larger going on under the
realpolitik of land grabs by Disney and campaign contributions by the
Recording Industry Association of America. But it would be an equal and op-
posite mistake to think that this is just about a dysfunctional discourse of
intellectual property. In this part of the analysis, too, the environmental
movement offers some useful practical reminders. The ideas of ecology and
environmental welfare economics were important, but one cannot merely
write A Sand County Almanac and hope the world will change. Environmen-
talists piggybacked on existing sources of conservationist sentimentlove of
nature, the national parks movement, hikers, campers, birdwatchers. They
built coalitions between those who might be affected by environmental
changes. They even stretched their political base by discovering, albeit too
slowly, the realities of environmental racism, on the one hand, and the bene-
ts of market solutions to some environmental problems on the other. Some
of these aspects, at least, could be replicated in the politics of intellectual
property.
Ten years ago, when I rst offered the environmental analogy, I claimed
that intellectual property policy was seen as a contract struck between indus-
try groupssomething technical, esoteric, and largely irrelevant to individual
citizens, except in that they were purchasers of the products that owed out
of the system. Whether or not that view has ever been tenable, it is not so in
a digital age. Instead, I offered the basic argument laid out herethat we
needed a politics of intellectual property modeled on the environmental
movement to create a genuine and informed political debate on intellectual
property policy.
7
So far, I have concentrated on the theoretical and academic tools such a de-
bate would needfocusing particularly on property theory and on economic
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analysis and its limits. But if there is to be a genuinely democratic politics of
intellectual property, we would need an institutional diversity in the policy-
making debate that was comparable to that of the environmental movement.
Environmentalism presents us with a remarkable diversity of organization-
al forms and missions. We have Greenpeace, the Environmental Legal Defense
Fund, groups of concerned scientists, and the Audubon Society, each with its
own methods, groups of supporters, and sets of issues. Yet we also have local
and pragmatic coalitions to save a particular bit of green space, using the pri-
vate tools of covenants and contracts.
8
I think we can see the beginnings of
the replication of that institutional diversity in the world of intangible
property.
Ten years ago, civil society had little to offer in terms of groups that repre-
sented anything other than an industry position on intellectual property, still
less ones that took seriously the preservation of the public domain or the idea
that intellectual property policy was a matter of balance, rather than simple
maximization of rights. There were the librarians and a few academics. That
was about it. This position has changed radically.
There are academic centers that concentrate on the theoretical issues dis-
cussed in this bookone of them at my university. Thanks in large part to the
leadership of Pamela Samuelson, there are law student clinics that do impact
litigation on issues such as fair use and that represent underserved clients such
as documentarians. But beyond academic work, there are organizations that
have dedicated themselves to advocacy and to litigation around the themes of
preservation of the public domain, defense of limitations and exceptions in
copyright, and the protection of free speech from the effects of intellectual
property regulation of both content and the communications infrastructure.
The Electronic Frontier Foundation did exist ten years ago, but its coverage of
intellectual property issues was only episodic. Its portfolio of litigation and
public education on the subject is now nothing short of remarkable. Public
Knowledges valuable lobbying and education is another obvious example. In-
ternational organizations with similar aims include the Open Rights Group in
the United Kingdom.
9
Organizing has also taken place around particular casessuch as Eldred v.
Ashcroft, the challenge to the Sonny Bono Copyright Term Extension Act.
10
Activity is not conned to the world of copyright. The Public Patent Founda-
tion combats patent creep by exposing and challenging bad patents.
11
It would be remiss not to mention the international Access to Knowledge,
or A2K, movement, inspired by the work of Jamie Love.
12
While its focus is
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on the kinds of issues represented by the access-to-medicines movement, it
has made the idea of balance in intellectual property and the protection of the
public domain one of its central components. Mr. Love himself is also the
central gure behind the idea of a Research and Development Treaty which
would amend international trade agreements to make intellectual property
merely one of a whole range of economic methods for stimulating innova-
tion.
13
His work has touched almost every single one of the movements
discussed here.
The Access to Knowledge movement has many institutional variants. The
Development Agenda at the World Intellectual Property Organization
(WIPO), put forward by India and Brazil, includes similar themes, as do the
Geneva Declaration and the Adelphi Charter produced by the United King-
doms Royal Society for the Encouragement of Arts, Manufactures and Com-
merce.
14
History is full of wordy charters and declarations, of course. By
themselves they mean little. Yet the level of public and media attention paid
to them indicates that intellectual property policy is now of interest beyond a
narrow group of affected industries. To underscore this point, several major
foundations have introduced intellectual property initiatives, something that
would have been inconceivable ten years ago.
15
Finally, to complete the analogy to the land trust, we have the organizations
I mentioned earlier, such as Creative Commons and the Free Software Foun-
dation.
16
The latter group pioneered within software the attempt to create a
licensed commons in which freedoms are guaranteed. The licensed com-
mons replaces the laws default rules with choices made by individuals, the ef-
fects of which are magnied by collective action. The end result is a zone of
public freedom enabled by private choice.
If one looks at these institutions and actors and at the range of issues on
which they focusfrom software to drug patents, from reverse engineering to
access to archival recordsthe obvious question is, how did they overcome
the collective action problem? What ties together a critique of digital locks
and the access-to-medicines movement? Again, I think the answer points to
the usefulness of the environmental analogy. As I pointed out, the invention
of the environment trope tied together groups whose interests, considered
at a lower level of abstraction, seemed entirely differenthunters and bird-
watchers, antipollution protesters and conservation biologists. The idea of the
environment literally created the self-interest or set of preferences that
ties the movement together. The same is true here. Apparently disparate inter-
ests are linked by ideas of the protection of the public domain and of the
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importance of a balance between protection and freedom in cultural and sci-
entic ecology.
17
But even a broad range of initiatives and institutions would not, in and of
themselves, produce results. One must convince people that ones arguments
are good, ones institutional innovations necessary, ones horror stories dis-
turbing. Environmentalism has managed to win the battle for clarityto
make its points clearly enough that they ceased to be dismissed as arcane or
technical, to overcome neglect by the media, to articulate a set of concerns
that are those of any educated citizen. The other striking phenomenon of the
last ten years is the migration of intellectual property issues off the law re-
views or business pages and onto the front pages and the editorial pages. Blogs
have been particularly inuential. Widely read sites such as Slashdot and Boing-
Boing have multiple postings on intellectual property issues each day; some
are rants, but others are at a level of sophistication that once would have been
conned to academic discussion.
18
Scientists passionately debate the impor-
tance of open access to scholarly journals. Geographers and climatologists
fume over access to geospatial data. The movement has been pronounced
enough to generate its own reaction. The popular comics site xkcd has
strips critical of the Digital Millennium Copyright Act,
19
but also a nerdily
idyllic picture of a stick gure reclining under a tree and saying, Sometimes
I just cant get outraged over copyright law.
20
That cartoon now resides on
my computer desktop. (It is under a Creative Commons license, ironically
enough.)
Who can blame the stick gure? Certainly not I. Is it not silly to equate the
protection of the environment with the protection of the public domain? Af-
ter all, one is the struggle to save a planetary ecology and the other is just some
silly argument about legal rules and culture and science. I would be the rst to
yield primacy to the environmental challenges we are facing. Mass extinction
events are to be avoided, particularly if they involve you personally. Yet my
willingness to minimize the importance of the rules that determine who owns
science and culture goes only so far.
A better intellectual property system will not save the planet. On the other
hand, one of the most promising sets of tools for building biofuels comes
from synthetic biology. Ask some of the leading scientists in that eld why
they devoted their precious time to trying to work out a system that would of-
fer the valuable incentives that patents provide while leaving a commons of
biobricks open to all for future development. I worry about these rules nat-
urally; they were forced to do so. A better intellectual property system certainly
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will not end world hunger. Still it is interesting to read about the lengthy
struggles to clear the multiple, overlapping patents on GoldenRice
TM
a rice
grain genetically engineered to cure vitamin deciencies that nearly perished
in a thicket of blurrily overlapping rights.
21
A better intellectual property system will not cure AIDS or rheumatoid
arthritis or Huntingtons disease or malaria. Certainly not by itself. Patents
have already played a positive role in contributing to treatments for the rst
two, though they are unlikely to help much on the latter two; the affected pop-
ulations are too few or too poor. But overly broad, or vague, or confusing
patents could (and I believe have) hurt all of those effortseven those being
pursued out of altruism. Those problems could be mitigated. Reforms that
made possible legal and facilitated distribution of patented medicines in Africa
might save millions of lives. They would cost drug companies little. Africa
makes up 1.6 percent of their global market. Interesting alternative methods
have even been suggested for encouraging investment in treatments for neg-
lected diseases and diseases of the worlds poor. At the moment, we spend 90
percent of our research dollars on diseases that affect 10 percent of the global
population. Perhaps this is the best we can do, but would it not be nice to have
a vigorous public debate on the subject? Some possible innovations are much
easier. A simple rule that required the eventual free publication online of all
government-funded health research, under open licenses, rather than its se-
questration behind the paywalls of commercial journals, could help fuel re-
markable innovations in scientic synthesis and computer-aided research while
giving citizens access to the research for which they have already paid.
Good intellectual property policy will not save our culture. But bad policy
may lock up our cultural heritage unnecessarily, leave it to molder in libraries,
forbid citizens to digitize it, even though the vast majority of it will never be
available publicly and no copyright owner can be found. Would you not pre-
fer the world in which your children could look at the Library of Congress
online catalogue and click to get the book or lm or song that otherwise lan-
guished as an orphan work? Good intellectual policy will not necessarily
give us great new music. But the policy we have today would make some of
the music we most cherish illegal, or at least legally questionable. Does that
inspire condence for the future? As for the World Wide Web, I offer again
my thought experiment from the rst part of this chapter. Would we be more
likely to invent it or forbid it today? We are certainly working busily to change
the openness of the general-purpose computer, the neutrality of the network,
and the degree of control that content companies can exert over hardware.
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I do not claim that the issues I have written about here are the most impor-
tant problem the world faces. That would be ridiculous. But I do claim that
they are facets of a very important problem and one to which we are paying
far too little attention.
I would also be the rst to admit that these issues are complicated. Even if
we heeded the precepts I have outlined in this book, even if we actually started
to look at intellectual property as an empirical question, even if we turned to
data rather than faith for our assessments, reasonable people would disagree
about much. Some of the most ludicrous recent excesseshuge retrospective
copyright term extensions, database rights, proposed webcasting treaties, busi-
ness method patentsdo not pass the laugh test, in my view and that of most
scholars. Stopping and then reversing that tide would be valuable, even trans-
formative, but other issues are a closer call.
It is also true that we do not have all the tools we need. A lot remains to be
done, both academically and practically. We need better evidence. We need
property theories that give us as rich a conception of propertys outsideof
the public domain and the commonsas we have of property itself. We need
to rethink some of our policies of international harmonization and reconsider
what types of policy actually benet the developing world. We should explore
ways of compensating artists that are very different from the ones we use now,
and study the use of distributed creativity and open source in new areas of sci-
ence and culture.
Difculties aside, I have tried here to show that we need a cultural environ-
mental movement, a politics that enables us rst to see and then to preserve
the public domain, to understand its contributions to our art, our technology,
and our culture. Where is that movement now?
There is cause for both concern and optimism. Concern, because it is still
hard for courts, legislators, policy makers, and citizens to see beyond the word
property to the reality underneath. I started this book with the question
from my son about the online catalogue of the Library of Congress: Where
do you click to get the book? In 2003 the Supreme Court heard Eldred v.
Ashcroft, the challenge to retrospective copyright term extension. Over two
strong dissents, the Court upheld the constitutionality of the act against both
First Amendment and Copyright Clause challenges. The dead had their copy-
rights extended yet again. The widest legal restriction of speech in the history
of the Republicputting off-limits most twentieth-century books, poems,
lms, and songs for another twenty years without a corresponding speech
benet or incentivecan proceed without signicant First Amendment review.
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Does such a decision mean the task this book undertakesto take seriously
the contributions of the public domain to innovation, culture, and speech
is ultimately doomed, whatever its intellectual merits, to face a hostile or un-
comprehending audience? Admittedly, Eldred focused specically on two
particular constitutional claims. Still, the attitude of the majority toward the
importance of the public domainwhether in the textual limitations on
Congresss power or the application of the First Amendmentcan hardly be
cause for optimism. And yet . . . The media reaction was remarkable.
The New York Times was sufciently unfamiliar with the term public do-
main that it was not entirely sure whether or not to use the denite article in
front of it. But unfamiliarity did not imply complacency. An editorial declared
that this decision makes it likely that we are seeing the beginning of the end of
public domain and the birth of copyright perpetuity. Public domain has been a
grand experiment, one that should not be allowed to die. The ability to draw
freely on the entire creative output of humanity is one of the reasons we live in
a time of such fruitful creative ferment.
22
The Washington Post, though more
inclined to agree that retrospective extension might be constitutional, declared
the copyright system to be broken in that it effectively and perpetually pro-
tects nearly all material that anyone would want to cite or use. Thats not what
the framers envisioned, and its not in the public interest.
23
I could not agree more. But as I have tried to show here, the process is not
limited to copyright, or culture, or texts, or the United States. Think of the
stories about business method patents, or synthetic biology, or the regulation
of musical borrowing on the atomic level. Think of the discussion of the
openness aversion that began this chapter. In the middle of the most success-
ful and exciting experiment in nonproprietary, distributed creativity in the
history of the species, our policy makers can see only the threat from piracy.
They act accordingly. Our second enclosure movement is well under way. The
poem with which I began Chapter 3 told us: And geese will still a common
lack / Till they go and steal it back. I cannot match the terseness or the
rhyme, but if we assume that the enclosure of the commons of the mind will
bring us prosperity, great science, and vibrant culture, well, we will look like
very silly geese indeed.
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Notes and Further Readings
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NOTES TO ACKNOWLEDGMENTS
1. James Boyle, The Second Enclosure Movement and the Construction of the Public Do-
main, Law and Contemporary Problems 66 (WinterSpring 2003): 3374.
2. Arti Rai and James Boyle, Synthetic Biology: Caught between Property Rights,
the Public Domain, and the Commons, PLoS Biology 5 (2007): 389393, available at
http://biology.plosjournals.org/perlserv/?request=get-document&doi=10.1371/journal.pbio
.0050058&ct=1.
3. James Boyle, A Politics of Intellectual Property: Environmentalism for the Net? Duke
Law Journal 47 (1997): 87116, available at http://www.law.duke.edu/journals/cite.php?
47+Duke+L.+J.+87.
4. Cultural Environmentalism @ 10, Law and Contemporary Problems 70 (Spring 2007):
1210, available at http://www.law.duke.edu/ce10.
NOTES TO PREFACE
1. U.S. Patent No. 6,004,596 (led Dec. 21, 1999), available at http://patft.uspto.gov/
netahtml/PTO/srchnum.htm (search 6,004,596). As is required, the patent refers ex-
tensively to the prior artin this case prior art in sealing sandwiches. It also refers to the
classic scientic reference work 50 Great Sandwiches by Carole Handslip 8184, 86, 95,
1994. Is this patent ridiculous? Yes, clearly so. But not so ridiculous that its eventual owner,
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Smuckers, refrained from sending out cease and desist letters to competing sandwich
manufacturers, and, when one of those competitors successfully requested the Patent and
Trademark Ofce to reexamine the patent, from appealing the resulting rejection all the
way through the Board of Patent Appeals and Interferences to the Court of Appeals for
the Federal Circuit. The judges there were less than sympathetic at oral argument. Judge
Arthur Gajarsa noted that his wife often squeezes together the sides of their childs peanut
butter and jelly sandwiches to keep the lling from oozing out. Im afraid she might be
infringing on your patent! he said. The court found that the PTO got it right the second
time around and agreed with the Board of Patent Appeals in rejecting the patent. Port-
folio Media, Peanut Butter and Jelly Case Reaches Federal Circuit, IPLaw360 (April 7,
2005), available at http://www.iplawbulletin.com. For the Board of Patent Appealss
learned discussion of whether the patent was anticipated by such devices as the Tartmas-
ter, complete with disputes over expert testimony on the subjects of cutting, crimping,
and leaking outwardly and painstaking inquiries about what would seem obvious to a
person having ordinary skill in the art of sandwich making, see http://des.uspto.gov/
Foia/ReterivePdf?system=BPAI&Nm=fd031754 and http://des.uspto.gov/Foia/Reterive-
Pdf?system=BPAI&Nm=fd031775. One could conclude from this case that the system
works (eventually). Or one could ask who cares about silly patents like thiseven if they
are used in an attempt to undermine competition? The larger point, however, is that an
initial process of examination that nds a crimped peanut butter and jelly sandwich is
novel and nonobvious is hardly going to do better when more complex technologies are
at stake. I take that point up in Chapter 2 with reference to Thomas Jeffersons discussion
of patents and in Chapter 7 on synthetic biology. For a more general discussion of the
aws of the patent system see Adam B. Jaffe and Josh Lerner, Innovation and Its Discon-
tents: How Our Broken Patent System Is Endangering Innovation, and Progress and What To
Do About It (Princeton, N.J.: Princeton University Press, 2004).
2. These types of patents are discussed in Chapter 7.
3. San Francisco Arts & Athletics, Inc., et al. v. United States Olympic Committee, 483 U.S. 522
(1987). See also James Boyle, Shamans, Software, and Spleens: Law and the Construction of
the Information Society (Cambridge, Mass.: Harvard University Press, 1996), 145148.
4. SunTrust Bank v. Houghton Mifin Co., 268 F.3d 1257 (11th Cir. 2001).
5. See Samuel E. Trosow, Sui Generis Database Legislation: A Critical Analysis, Yale Jour-
nal of Law & Technology 7 (2005): 534642; Miriam Bitton, Trends in Protection for In-
formational Works under Copyright Law during the 19th and 20th Centuries,
Michigan Telecommunications & Technology Law Review 13 (2006): 115176.
6. The Digital Millennium Copyright Act is discussed at length in Chapter 5. Digital
fences include password protection, encryption, and forms of digital rights management.
7. Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200 (2nd Cir. 1979).
8. In the forests of Panama lives a Guyami Indian woman who is unusually resistant to
a virus that causes leukemia. She was discovered by scientic gene hunters, engaged in
seeking out native peoples whose lives and cultures are threatened with extinction.
Though they provided basic medical care, the hunters did not set out to preserve the
people, only their geneswhich can be kept in cultures of immortalized cells grown in
the laboratory. In 1993, the U.S. Department of Commerce tried to patent the Guyami
Notes to pages xixiii 250
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womans genesand only abandoned the attempt in the face of furious protest from
representatives of indigenous peoples. Tom Wilkie, Whose Gene Is It Anyway? Inde-
pendent (London, November 19, 1995), 75.
9. See Christina Rhee, Urantia Foundation v. Maaherra, Berkeley Technology Law Jour-
nal 13 (1998): 6981.
10. See James Boyle, Intellectual Property Policy Online: A Young Persons Guide, Har-
vard Journal of Law & Technology 10 (1996): 8394.
11. Garrett Hardin, The Tragedy of the Commons, Science 162 (1968): 12431248.
12. International News Service v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissent-
ing); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on
Enclosure of the Public Domain, New York University Law Review 74 (1999): 354446.
CHAPTER ::
WHY INTELLECTUAL PROPERTY?
Further Reading
This chapter argues that at least one goal we have in an intellectual property system is the
attempt to solve various public goods problems. (Subsequent chapters defend that view
historically and normatively, discuss the ideas of moral right and natural right, the tradi-
tion of the droits dauteur, and the similarities and dissimilarities between the arguments
for tangible and intellectual property rights. Further reading on those issues can be found
in the relevant chapter.)
The single best starting point for someone who wishes to understand an economic per-
spective on intellectual property is William M. Landes and Richard A. Posner, The Eco-
nomic Structure of Intellectual Property Law (Cambridge, Mass.: Belknap Press, 2003). The
story laid out in this chapter is one largely (but not entirely) focused on the idea of intel-
lectual property rights offered as incentivesthe carrot that induces the author to write,
the inventor to research, the investor to fund that research, and the corporation to develop
attractive and stable brand names that convey reliable information to consumers. This is
conventionally known as the ex ante perspective. But as the chapter also hints, intellectual
property rights, like property rights in general, have a role after the innovation has
occurredfacilitating its efcient exploitation, allowing inventors to disclose their inven-
tions to prospective licensees without thereby losing control of them, and providing a
state-constructed, neatly tied bundle of entitlements that can be efciently traded in the
market. Readers interested in these perspectives will benet from looking at these articles:
Edmund Kitch, The Nature and Function of the Patent System, Journal of Law and Eco-
nomics 20 (1977): 265290; Paul J. Heald, A Transaction Costs Theory of Patent Law,
Ohio State Law Journal 66 (2005): 473509; and Robert Merges, A Transactional View of
Property Rights, Berkeley Technology Law Journal 20 (2005): 14771520. Of course, just as
the incentives account of intellectual property has its skeptics, so these ex post theories at-
tract skepticism from those who believe that, in practice, the rights will not be clear and
well-delineated but vague and potentially overlapping, that the licensing markets will nd
themselves entangled in patent thickets from which the participants can escape only at
great cost or by ignoring the law altogether. It is worth comparing Michael A. Heller and
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Rebecca S. Eisenberg, Can Patents Deter Innovation? The Anticommons in Biomedical
Research, Science 280 (1998): 698701, with John Walsh, Ashish Arora, and Wesley Co-
hen, Effects of Research Tool Patents and Licensing on Biomedical Innovation, in Patents
in the Knowledge-Based Economy (Washington D.C.: National Academies Press, 2003),
285340. There is a nice irony to imagining that the necessary mechanism of the efcient
market is ignore the property rights when they are inconvenient.
The skeptics argue that the alternative to a deeply commodied world of invention and
innovation, with hundreds of thousands of licensing markets, is a rich information and in-
novation commons, from which all can draw freely, supporting a thin and well-dened
layer of intellectual property rights close to the ultimate commercially viable innovation.
The rhetorical structure of the debatereplete with paradox and inversionis laid out in
James Boyle, Cruel, Mean, or Lavish? Economic Analysis, Price Discrimination and Dig-
ital Intellectual Property, Vanderbilt Law Review 53 (2000): 20072039. For some of the
difculties in the attempt to arrive at a coherent economic theory of intellectual property,
see James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Informa-
tion Society (Cambridge, Mass.: Harvard University Press, 1996), 3546. Finally, while I
urge that at the outset we must care about the actual effects and economic incentives pro-
vided by intellectual property rights, I am by no means asserting that we should stop there.
Indeed to do so would dramatically impoverish our view of the world. James Boyle, En-
closing the Genome: What Squabbles over Genetic Patents Could Teach Us, in Perspec-
tives on Properties of the Human Genome Project, ed. F. Scott Kieff (San Diego, Calif.:
Elsevier Academic Press, 2003), 97, 107109.
In other words, as all this suggests, this chapter is only an introduction to a rich and
complex debate.
Notes to Chapter :
1. As the suggested further reading indicates, this light-hearted account of the economic
basis of intellectual property conceals considerable complexity. On the other hand, the
core argument is presented hereand a compelling argument it is.
2. See Jack Hirshleifer, The Private and Social Value of Information and the Reward to In-
ventive Activity, American Economic Review 61 (1971): 561574.
3. Unfortunately, the reality turns out to be less rosy. James Bessen, Patents and the Dif-
fusion of Technical Information, Economics Letters 86 (2005): 122: [S]urvey evidence
suggests that rms do not place much value on the disclosed information. Moreover,
those rms that do read patents do not use them primarily as a source of information
on technology. Instead, they use them for other purposes, such as keeping track of com-
petitors or checking for infringement. There are, in fact, sound theoretical reasons why
the disclosed information may not be very valuable. [Fritz] Machlup and [Edith] Pen-
rose report that the argument about diffusion is an old one, popular since the mid-19th
century. They also point out that, at least through the 1950s, economists have been
skeptical about this argument. The problem, also recognized in the mid-19th century, is
that only unconcealable inventions are patented, so patents reveal little that could not
be otherwise learned. On the other hand, concealable inventions remain concealed.
[Citations omitted.]
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4. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, Columbia
Law Review 35 (1935): 817.
5. For contrasting views of the sequence of events, see John Feather, Publishers and Politi-
cians: The Remaking of the Law of Copyright in Britain 17751842, pt. 2, The Rights
of Authors, Publishing History 25 (1989): 4572; Mark Rose, Authors and Owners: The
Invention of Copyright (Cambridge, Mass.: Harvard University Press, 1993).
6. Tim OReilly points out that there are 32 million titles in the Online Computer Library
Centers WorldCat cataloguethis is a reasonable proxy for the number of books in
U.S. libraries. Nielsens Bookscan shows that 1.2 million books sold at least one copy
in 2005. This yields a ratio of books commercially available to books ever published of
about 4 percent. But of those 1.2 million books, many are in the public domainthink
of Shakespeare, Dickens, Austen, Melville, Kipling. Thus the percentage of books that
are under copyright and commercially available may actually be considerably lower than
4 percent. See http://radar.oreilly.com/archives/2005/11/oops_only_4_of_titles_are_bein
.html. For a lucid account of the statistics in the context of the Google Book Search Pro-
ject, see http://lessig.org/blog/2006/01/google_book_search_the_argumen.html.
7. See Barbara Ringer, Study Number 31: Renewal of Copyright, reprinted in U.S. Sen-
ate Committee on the Judiciary, Subcommittee on Patents, Trademarks, and Copy-
rights, Copyright Law Revision, 86th Cong., 1st Sess., Committee Print (1960), 187. See
also HR Rep. 94-1476 (1976), 136; William M. Landes and Richard A. Posner, The Eco-
nomic Structure of Intellectual Property Law (Cambridge, Mass.: Belknap Press, 2003),
210212.
8. Details of the orphan works problem can be found in the proposals presented to the
copyright ofce by the Center for the Study of the Public Domain; Orphan Works:
Analysis and Proposal: Submission to the Copyright OfceMarch 2005, available at http://
www.law.duke.edu/cspd/pdf/cspdproposal.pdf, and Access to Orphan Films: Submission
to the Copyright OfceMarch 2005, available at http://www.law.duke.edu/cspd/pdf/
cspdorphanlm.pdf. Two recent bills, in the Senate and House, respectively, attempt to
address the orphan works problems. The Shawn Bentley Orphan Works Act of 2008,
S 2913, 110th Cong. (2008), would add a new section to the Copyright Act limiting
remedies for infringement of orphan works and requiring the establishment of a data-
base of pictorial, graphic, and sculptural works. The House bill, The Orphan Works Act
of 2008, HR 5889, 110th Cong. (2008), is similar but not identical. While these bills are
a good start, the eventual remedy will need to be more sweeping.
9. Bruce Sterling, Heavy Weather (New York: Bantam, 1994): 73.
CHAPTER z:
THOMAS JEFFERSON WRITES A LETTER
Further Reading
In this chapter I offered a snapshot of the historical debate over copyright, patent and
to a lesser extenttrademark law. The argument is partly a matter of intellectual history:
a claim about what various individuals and groups actually believed about intellectual
property rights, and the way those beliefs shaped the policies they supported and the legal
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structures they created. But it is also a normative argumenta claim that this vision of in-
tellectual property is better than the more physicalist and absolutist alternatives I de-
scribed or, at the very least, that it is an important corrective to our current excesses. This
dual character complicates the task of providing a guide to further reading: books could be
written on either portion alone.
My own understanding of the history of intellectual propertyitself a relatively re-
cently invented and contentious categoryhas been profoundly inuenced by more schol-
ars than I can list here. Edward C. Walterscheid, The Nature of the Intellectual Property
Clause: A Study in Historical Perspective (Buffalo, N.Y.: W. S. Hein, 2002), gives a magiste-
rial account of the origins of the U.S. Constitutions intellectual property clause. Tyler
T. Ochoa and Mark Rose, The Anti-Monopoly Origins of the Patent and Copyright
Clause, Journal of the Patent & Trademark Ofce Society 84 (2002): 909940, offer a vision
of the history that is closest to the one I put forward here. In addition, Tyler T. Ochoa,
Origins and Meanings of the Public Domain, University of Dayton Law Review 28
(2002): 215267, provides the same service for the concept of the public domain. Malla
Pollack provides a useful historical study of the contemporary understanding of the word
progress at the time of the American Constitution in Malla Pollack, The Democratic
Public Domain: Reconnecting the Modern First Amendment and the Original Progress
Clause (a.k.a. Copyright and Patent Clause), Jurimetrics 45 (2004): 2340. A rich and
thought-provoking account of the way that ideas of intellectual property worked them-
selves out in the context of the corporate workplace can be found in Catherine Fisk, Work-
ing Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 18001930
(Chapel Hill: University of North Carolina Press, forthcoming 2009).
Of course, the history of copyright or of intellectual property cannot be conned to the
two gures I focus on principally hereJefferson and Macaulaynor cannot it be con-
ned to the Anglo-American tradition or to the debates in which Jefferson and Macaulay
were participating. Carla Hesse, Publishing and Cultural Politics in Revolutionary Paris,
17891810 (Berkeley: University of California Press, 1991), is vital reading to understand the
parallels between the Anglo-American and droits dauteur tradition. It is also fascinating
reading. For studies of the broader intellectual climate, I recommend Martha Woodmansee,
The Author, Art, and the Market: Rereading the History of Aesthetics (New York: Columbia
University Press, 1994); Peter Jaszi, Toward a Theory of Copyright: The Metamorphoses of
Authorship, Duke Law Journal 1991, no. 2: 455502; Mark Rose, Authors and Owners: The
Invention of Copyright (Cambridge, Mass.: Harvard University Press, 1993); Lyman Ray Pat-
terson, Copyright in Historical Perspective (Nashville, Tenn.: Vanderbilt University Press,
1968). The British debates at the time of Macaulay are beautifully captured in Catherine
Seville, Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copy-
right Act (Cambridge, U.K.: Cambridge University Press, 1999). (It should be noted that,
while sympathetic, she is less moved than I by Macaulays arguments.)
Any collection of historical works this rich and complex resists summary description
nevertheless, I think it is fair to say that the vast majority of these works stress the central-
ity of the skeptical antimonopolist attitudes I use Jefferson and Macaulay to represent to
the history of intellectual property. This does not mean there is unanimity or anything
close to it. In particular, Adam Mossoff, Who Cares What Thomas Jefferson Thought
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about Patents? Reevaluating the Patent Privilege in Historical Context, Cornell Law Re-
view 92 (2007): 9531012, which came to light late in the writing of this book, offers a
thoughtful historical account that criticizes the tendency to use Jeffersons views as repre-
sentative of a dominant strand in American intellectual property. My agreements and dis-
agreements with Mossoff s arguments are discussed fully later in the notes to this chapter.
The central point, however, and the single strongest argument against those who would in-
stead attempt to construct a more absolutist, physicalist or labor-based theory of intellec-
tual property, is the problem of limits. Where does one stop? How can one put a limit on
the potentially absolute claim over some intellectual creation? How can one specify the
limits on prior creators that actually give me ownership over what I create, for I surely have
built on the works of others? How can one circumscribe the negative effects on speech, life,
and culture that the absolutist or maximalist tradition threatens to generate? My ultimate
argument is that the purpose-driven, skeptical, antimonopolistic tendencies of Jefferson
and Macaulay answer those questions far better than any contending theory, that they rep-
resent not merely an intellectual history sadly neglected in todays political debates, but a
practical solution to the inevitable question, where do you draw the line?
Notes to Chapter z
1. Letter from Thomas Jefferson to Isaac McPherson (August 13, 1813), in The Writings of
Thomas Jefferson, ed. Albert Ellery Bergh (Washington, D.C.: The Thomas Jefferson
Memorial Association of the United States, 1907), vol. XIII, 326338 (hereinafter Letter
to McPherson), available at http://memory.loc.gov/ammem/collections/jefferson_papers/
mtjser1.html (follow May 1, 1812 hyperlink, then navigate to image 1057).
2. For example, attempting to procure a former stable master a position (letter from
Thomas Jefferson to Samuel H. Smith [August 15, 1813], available at http://memory.loc
.gov/ammem/collections/jefferson_papers/mtjser1.html [follow May 1, 1812 hyperlink,
then navigate to image 1070]), comments on Rudiments of English Grammar (letter
from Thomas Jefferson to John Waldo [August 16, 1813], in Writings of Thomas Jefferson,
vol. XIII, 338347), orthography of the plurals of nouns ending in y (letter from Thomas
Jefferson to John Wilson [August 17, 1813], Writings of Thomas Jefferson, vol. XIII,
347348), accepting the necessary delay in the publication of a study on the anatomy of
mammoth bones (letter from Thomas Jefferson to Caspar Wistar [August 17, 1813], avail-
able at http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1.html [fol-
low May 1, 1812 hyperlink, then navigate to image 1095]), and discussing the Lewis
biography (excerpt of a letter from Thomas Jefferson to Paul Allen [August 18, 1813], Let-
ters of the Lewis and Clark Expedition with Related Documents 17831854, ed. Donald Jack-
son (Urbana: University of Illinois Press, 1962), 586).
It is easy, in fact, reading this prodigious outpouring of knowledge and enthusiasm, to
forget the other side of Jefferson and the social system that gave him the leisure to write
these letters. Just a few weeks before he wrote to McPherson, he wrote a letter to
Jeremiah Goodman about a slave called Hercules who had been imprisoned as a run-
away. The folly he has committed certainly justies further punishment, and he goes in
expectation of receiving it. . . . Letter from Thomas Jefferson to Jeremiah A. Goodman
(July 26, 1813), in Thomas Jeffersons Farm Book, ed. Edwin Morris Betts (Charlottesville,
Notes to page 17 255
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Va.: American Philosophical Society, 1999), 36. While leaving the matter up to Good-
man, Jefferson argues for leniency and for refraining from further punishment. In that
sense, it is a humane letter. But this is one of the authors of the Declaration of Indepen-
dence, full of glorious principlesunalienable rights; life, liberty, and the pursuit of
happinessenunciated in the context of indignation at relatively mild colonial policies
of taxation and legislation. How could a man who thought that taxing tea was tyranny,
and that all men had an unalienable right to liberty, believe that it was folly justifying
further punishment for a slave to run away? Reading the lettera curiously intimate,
almost voyeuristic actone nds oneself saying What was he thinking?
3. Letter to McPherson, 333.
4. See Letter from Thomas Jefferson to Abraham Baldwin (April 14, 1802), in Writings of
Thomas Jefferson, vol. XIX, 128129.
5. See Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson,
2nd ed. (Armonk, N.Y.: M. E. Sharpe, 2001), ix; Annette Gordon-Reed, Thomas Jeffer-
son and Sally Hemings: An American Controversy (Charlottesville: University Press of
Virginia, 1997) 1, 4043, 6061, 222.
6. Letter to McPherson, 336, quoted in John Perry Barlow, Economy of Ideas, Wired
(March 1994): 84. For a careful scholarly explanation of the antimonopolist origins of
eighteenth-century ideas such as Jeffersons, see Tyler T. Ochoa and Mark Rose, The
Anti-Monopoly Origins of the Patent and Copyright Clause, Journal of the Copyright
Society of the U.S.A. 49 (2002): 675706. One scholar has offered a thoughtful critique
that suggests Jeffersons views were not, in fact, representative either of the times or of
the attitudes of the other framers toward intellectual property. See Adam Mossoff,
Who Cares What Thomas Jefferson Thought about Patents? Reevaluating the Patent
Privilege in Historical Context, Cornell Law Review 92 (2007): 9531012.
7. Letter to McPherson, 328.
8. Letter from Thomas Jefferson to Dr. Thomas Cooper (February 10, 1814), in Thomas
Jefferson, Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 1321.
9. Letter to McPherson, 333.
10. Ibid., 333334.
11. Ibid.
12. Ibid., 335.
13. See ibid., 333335.
14. Readers interested in learning more about this fascinating man could begin with
George Otto Trevelyan, The Life and Letters of Lord Macaulay, London ed. (Longmans,
1876).
15. Thomas Babington Macaulay, speech delivered in the House of Commons (February 5,
1841), in The Life and Works of Lord Macaulay: Complete in Ten Volumes, Edinburgh ed.
(Longmans, 1897), vol. VIII, 198 (hereinafter Macaulay Speech).
16. Ibid., 199.
17. Ibid., 198199.
18. Graham v. John Deere, 383 U.S. 1, 711 (1966).
19. Adam Mossoff, Who Cares What Thomas Jefferson Thought about Patents? Reevalu-
ating the Patent Privilege in Historical Context, Cornell Law Review 92 (2007):
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9531012. In a thoughtful, carefully reasoned, and provocative article, Professor Mossoff
argues that Jeffersons views have been misused by the courts and legal historians, and
that if we understand the use of the word privilege in historical context, we see that
the patent privilege was inuenced by a philosophy of natural rights as well as the an-
timonopolist utilitarianism described here. I both agree and disagree.
Professor Mossoff s central pointthat the word privilege was not understood by
eighteenth-century audiences as the antonym of rightis surely correct. To lay great
stress on the linguistic point that the patent right is merely a privilege is to rest
ones argument on a weak reed. But this is not the only argument. One could also be-
lieve that intellectual property rights have vital conceptual and practical differences
with property rights over tangible objects or land, that the framers of the Constitution
who were most involved in the intellectual property clause were deeply opposed to the
confusion involved in conating the two, and that they looked upon this confusion
particularly harshly because of an intense concern about state monopolies. One can
still disagree with this assessment, of course; one can interpret Madisons words this
way or that, or interpret subsequent patent decisions as deep statements of principle or
commonplace rhetorical ourishes. Still it seems to me a much stronger argument than
the one based on the privilegeright distinction. I am not sure Professor Mossoff would
disagree.
Professor Mossoff is also correct to point out that a legal privilege did sometimes
mean to an eighteenth-century reader something that the state was duty-bound to
grant. There was, in fact, a wide range of sources from which an eighteenth-century
lawyer could derive a state obligation to grant a privilege. Eighteenth-century legal talk
was a normative bouillabaissea rich stew of natural right, common law, utility, and
progressoften thrown together without regard to their differences. Some lawyers and
judges thought the common law embodied natural rights, others that it represented the
dictates of progress and utility, and others, more confusingly still, seemed to adopt
all of those views at once.
Nevertheless, I would agree that some eighteenth-century writers saw claims of
common-law right beneath the assertion of some privileges and that a smaller num-
ber of those assumed common-law right and natural right to be equivalent, and thus
saw a strong state obligation to grant a particular privilege based on natural right, wher-
ever that privilege had been recognized by English or U.S. common law. But here is
where I part company with Professor Mossoff.
First, I do not believe that the most important architects of the intellectual property
clause shared that view when it came to patents and copyrights. Jefferson, of course, was
not one of those who believed the state was so bound. Society may give an exclusive
right to the prots arising from [inventions], as an encouragement to men to pursue ideas
which may produce utility, but this may or may not be done, according to the will and
convenience of the society, without claim or complaint from any body (Letter to McPher-
son, 334, emphasis added). More importantly, Jeffersons thinking about patents was in-
fused by a deeply utilitarian, antimonopolist tinge. So, I would argue, was Madisons.
The quotations from Madison which I give later show clearly, to me at least, that
Madison shared Jeffersons deeply utilitarian attitude toward patent and copyright law.
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I think there is very good reason to believe that this attitude was dominant among the
Scottish Enlightenment thinkers whose writings were so inuential to the framers. I do
not think it is an exaggeration to say that the American Revolution was violently against
the world of monopoly and corruption that was the supposed target of the English
Statute of Monopolies (itself hardly a natural rights document). Yes, those thinkers
might fall back into talking about how hard an inventor had worked or construing a
patent expansively. Yes, they might think that within the boundaries of settled law, it
would be unjust to deny one inventor a patent when the general scheme of patent law
had already been laid down. But that did not and does not negate the antimonopolist
and, for that matter, utilitarian roots of the Constitutions intellectual property clause.
Second, while I agree that there were strands of natural right thinking and a labor the-
ory of value in the U.S. intellectual property system, and that they continue to this day
indeed, these were the very views that the Feist decision discussed in Chapter 9 repudiated,
as late as 1991I think it is easy to make too much of that fact. Is this signal or noise?
There are conceptual reasons to think it is the latter. Later in this chapter I discuss the evo-
lution of the droits dauteur tradition in France. Here, at the supposed heart of the natural
rights tradition, we nd thinkers driven inexorably to consider the question of limits.
How far does the supposed natural right extendin time, in space, in subject matter? It is
at that moment that the utilitarian focus and the fear of monopoly represented by Jeffer-
son and Madisonand, for that matter, Locke and Condorcetbecome so important.
Professor Mossoff is correct to criticize the focus on the word privilege, and also
correct that the ideas of natural right and the labor theory of value always color atti-
tudes toward intellectual property claims. But it would be an equal and opposite mis-
take to ignore two points. First, intellectual property rights are profoundly different
from physical property rights over land in ways that should denitively shape policy
choices. Second, partly because of those differences, and because of the inuence of
free-trade Scottish Enlightenment thought on the American Revolution in particular,
there was a powerful antimonopolist and free-trade sentiment behind the copyright
and patent clause. Simply read the clause. Congress is given the power to promote the
Progress of Science and useful Arts, by securing for limited Times to Authors and In-
ventors the exclusive Right to their respective Writings and Discoveries. Does this re-
ally read like the work of a group of believers in natural right? On the contrary, it reads
like a limited grant of power to achieve a particular utilitarian goal. That sentiment
nicely encapsulated in but by no means limited to the words of Jeffersonis still a
good starting place for an understanding of intellectual property.
20. See, e.g., Ochoa and Rose, Anti-Monopoly Origins, and Edward C. Walterscheid,
The Nature of the Intellectual Property Clause: A Study in Historical Perspective (Buffalo,
N.Y.: W. S. Hein, 2002). Ochoa, Rose, and Walterscheid stress the antimonopolist con-
cerns that animated some of those who were most active in the debates about intellec-
tual property. They also point out the inuence of the English Statute of Monopolies of
1623, which attacked monopolies in general, while making an exception for periods of
legal exclusivity for a limited time granted over sole Working or Making of any Manner
of new Manufacture within this Realm, to the rst true Inventor or Inventors of such
Manufactures which others at the time of the Making of such Letters Patents Grants did
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not use, so they be not contrary to the Law, nor mischievous to the State, by Raising of
the Prices of Commodities at home, or Hurt by Trade, or generally inconvenient.
21. For example, in a letter to Madison commenting on the draft of the Constitution: I like
it, as far as it goes; but I should have been for going further. For instance, the following al-
terations and additions would have pleased me: . . . Article 9. Monopolies may be allowed
to persons for their own productions in literature, and their own inventions in the arts, for
a term not exceeding . . . years, but for no longer term, and no other purpose. Letter
from Thomas Jefferson to James Madison (August 28, 1789), in Writings of Thomas Jeffer-
son, vol. 7, 450451.
22. Monopolies tho in certain cases useful ought to be granted with caution, and guarded
with strictness against abuse. The Constitution of the U.S. has limited them to two
casesthe authors of Books, and of useful inventions, in both which they are consid-
ered as a compensation for a benet actually gained to the community as a purchase of
property which the owner might otherwise withhold from public use. There can be no
just objection to a temporary monopoly in these cases: but it ought to be temporary
because under that limitation a sufcient recompence and encouragement may be
given. The limitation is particularly proper in the case of inventions, because they grow
so much out of preceding ones that there is the less merit in the authors; and because,
for the same reason, the discovery might be expected in a short time from other
hands. . . . Monopolies have been granted in other Countries, and by some of the
States in this, on another principle, that of supporting some useful undertaking, until
experience and success should render the monopoly unnecessary, and lead to a salutary
competition . . . But grants of this sort can be justied in very peculiar cases only, if at
all; the danger being very great t